OAR 839-005-0315: Discrimination Theories: Career Schools

(1) Intentional Unlawful Discrimination: Substantial evidence of intentional unlawful discrimination exists if the division's investigation reveals evidence that a reasonable person would accept as sufficient to support the following elements: (a) The respondent is a respondent as defined by ORS 659A.001 and OAR 839-005-0003; (b) The aggrieved person is a member of a protected class; (c) The aggrieved person was harmed by an action of the respondent; and (d) The aggrieved person’s protected class was the motivating factor for the respondent's action. In determining whether the aggrieved person’s protected class was the reason for the respondent's action, the division uses whichever of the following theories applies: (A) Specific Intent Theory: The respondent knowingly and purposefully discriminates against an individual because of that individual's membership in a protected class, unless the respondent can show that a bona fide voluntary, court-ordered affirmative action plan (OAR 839-005-0013(3)) allows the action. (B) Different or Unequal Treatment Theory: The respondent treats members of a protected class differently than others who are not members of that protected class. When the respondent makes this differentiation because of the individual's protected class and not because of legitimate, non-discriminatory reasons, unlawful discrimination exists. In establishing a case of different or unequal treatment: (i) There must be substantial evidence that the aggrieved person was harmed by an action of the respondent under circumstances that make it appear that the respondent treated the aggrieved person differently than comparably situated individuals who were not members of the aggrieved person’s protected class. Substantial evidence of discrimination exists if the division's investigation reveals evidence that a reasonable person would accept as sufficient to support that protected class membership was a motivating factor for the respondent's alleged unlawful action. If the respondent fails to rebut this evidence with evidence of a legitimate non-discriminatory reason, the division will conclude that substantial evidence of unlawful discrimination exists. (I) Pretext: If the respondent rebuts the evidence with evidence of a legitimate non-discriminatory reason, but there is substantial evidence that the respondent’s reason is a pretext for discrimination, the division will conclude there is substantial evidence of unlawful discrimination. (II) Mixed Motive: If the respondent presents substantial evidence that a legitimate, non-discriminatory reason contributed to the respondent's action, but the division finds the individual's protected class membership was also a substantial factor in the respondent's action, the division will determine there is substantial evidence of discrimination. (ii) The aggrieved person at all times has the burden of proving that the aggrieved person’s protected class was the reason for the respondent's unlawful action. (2) Harassment based on an individual's protected class is a type of intentional unlawful discrimination. (a) Conduct of a verbal or physical nature relating to protected classes other than sex is unlawful when substantial evidence of the elements of intentional discrimination, as described in section (1) of this rule, is shown and: (A) Such conduct is sufficiently severe or pervasive to have the purpose or effect of unreasonably interfering with an individual's performance or creating an intimidating, hostile or offensive environment; (B) Submission to such conduct is made either explicitly or implicitly a term or condition of enrollment; or (C) Submission to or rejection of such conduct is used as the basis for enrollment decisions affecting that individual. (b) The standard for determining whether harassment is sufficiently severe or pervasive to create a hostile, intimidating or offensive environment is whether a reasonable person in the circumstances of the complaining individual would so perceive it. (3) Adverse Impact Discrimination: Substantial evidence of adverse impact discrimination does not require establishment of intentional discrimination as provided in (1) of this rule. Adverse impact discrimination exists if the division's investigation reveals evidence that a reasonable person would accept as sufficient to support the following elements: (a) The respondent is a respondent as defined by ORS 659A.001 and OAR 839-005-0003; (b) The respondent has a standard or policy that is applied equally. (c) The standard or policy has the effect of screening out or otherwise affecting members of a protected class at a significantly higher rate than others who are not members of that protected class; and (d) The aggrieved person is a member of the protected class adversely affected by the respondent's standard or policy and has been harmed by the respondent's application of the standard or policy. (4) Reasonable Accommodation of Religion: A career school must reasonably accommodate a student’s or applicant's religious belief, observance or practice unless the career school can demonstrate that such accommodation would cause it undue hardship.