6/6/24: BOLI Proposes Rules to Clarify Employer Obligations When Responding to Harassment Allegations

June 6, 2024

By Missy Oakley & Lex Shvartsmann

Under some of Oregon’s employment laws, when workplace harassment occurs, employers who knew or had reason to know of the conduct may be held liable unless they can show they took “immediate and appropriate corrective action.” OAR 839-005-0010 and OAR 839-005-0030. Further, when it comes to harassment by an employee’s supervisor, part of the Bureau of Labor and Industries’ (BOLI) analysis for finding that the employer should have known of the harassment is whether the employer can show they exercised reasonable care to prevent and “promptly correct any harassing behavior” (or “promptly correct any sexually harassing behavior”). OAR 839-005-0010(4)(e) and OAR 839-005-0030(5)(b).

On May 24, 2024, BOLI filed a Notice of Proposed Rulemaking that would amend OAR 839-005-0010 and OAR 839-005-0030 and define “appropriate corrective action” and “promptly correcting harassing behavior.” BOLI’s proposed rules seek to clarify employer obligations following allegations of workplace harassment. Under the proposed definitions, “appropriate corrective action” and “promptly correcting harassing behavior” means that an employer:

1. Intervenes without avoidable delay to effectively halt harassing behavior;

2. Adequately investigates and ascertains the extent of harassing behavior;

3. Takes appropriate disciplinary measures proportionate to the seriousness of the offense;

4. Does not penalize the reporting employee or make the aggrieved party worse off; and

5. Effectively acts to prevent further harassment or retaliation against the reporting employee or aggrieved party for reporting or exercising rights concerning harassing behavior.

The proposed rules also state that the “success or failure of [the] corrective action in stopping harassment is relevant, but not dispositive, as to employer liability in determining whether [the] corrective action was reasonably likely to prevent the harassment from recurring.”

BOLI’s proposed rulemaking is open for public comment until July 15, 2024. Nonetheless, now is a good time for employers to evaluate their current policies for responding to harassment allegations.

For questions about BOLI’s proposed rules, contact Missy Oakley at 503-276-2122 or moakley@barran.com.

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