By Harold S. Berman J.D.
A medical assistant can pursue her retaliation claim against her former supervisor under an Oregon anti-discrimination statute even though he was not her employer and his alleged false statements about her were made outside of work.
A surgeon who spread false rumors about his former assistant to the admissions director of an MBA program after she complained of his sexually harassing conduct must litigate her state-law retaliation claim against him, the Supreme Court of Oregon ruled. Affirming the decision of the court below, which reversed the trial court’s dismissal of the retaliation claim, the state high court found the statute applies to individuals and encompasses retaliatory acts outside the workplace that have a connection to past or future employment (McLaughlin v. Wilson, September 12, 2019, Walters, M.).
Sexual harassment. The employee began working as a medical assistant for an orthopedic clinic in 2012. Her supervisor, an orthopedic surgeon, initially approved of her work and gave her high performance ratings. He wrote a very positive recommendation in support of her application to an MBA program.
However, in the ensuing months, the supervisor allegedly began to sexually harass the assistant, and tried to initiate a sexual relationship with her. She initially was afraid of retaliation if she reported the harassment. In June 2013, after the assistant was accepted into the MBA program, she told the supervisor that she would soon be leaving the clinic. His harassment then grew worse and he also criticized the assistant’s religious beliefs, after which she reported his conduct to the clinic.
False statements. The clinic launched an investigation and the assistant ultimately left to begin her MBA program. Her complaints against the supervisor were resolved in August.
Five days later, the supervisor visited the admissions office at the assistant’s MBA program and asked to speak to the admissions director about “the person who I wrote a reference for.” The supervisor falsely told the director that the assistant had left her previous two jobs “by getting large amounts of money and a gag order,” and that he was concerned she would manipulate male faculty members. These unfounded statements spread to others at the university, including the MBA program dean, resulting in the assistant experiencing unwanted attention and suffering emotional distress.
Lawsuit and appeals. The assistant sued the supervisor in state court, alleging several claims including retaliation under ORS 659A.030(1)(f), which makes it an “unlawful employment practice” for “any person” to discriminate against another person who opposed an unlawful practice, or filed a complaint.
The supervisor moved to dismiss the assistant’s retaliation claim, arguing that he was not the assistant’s employer when the alleged retaliation occurred, and so could not be held liable. The trial court agreed, dismissing the claim. The assistant appealed, maintaining that the statute prohibited discrimination by “any person” and so applied to the supervisor. The supervisor contended that the statute did not include coworkers, nor retaliation occurring outside the workplace. The appellate court reversed the trial court’s dismissal and the supervisor appealed to the Oregon Supreme Court.
Any person. The Oregon Supreme Court affirmed the appellate court’s reversal, remanding the assistant’s claim to the trial court. The state high court first rejected the supervisor’s argument that the word “person” in the statute was not intended to include an individual who was not an employer. The statute’s broad definition of “person” was not limited to employers and encompassed coworkers such as the supervisor. Nor, as the supervisor contended, was “person” qualified in any way by the context so as to narrow the scope of its meaning. Rather, the context of the entire statute showed that the legislature intended for “person” to be construed broadly, and was not limited to employers, labor organizations, or employment agencies.
Additionally, the legislative history showed that the statute was intended to apply broadly to coworkers such as the supervisor. The legislature specifically modified the statute in 2001, replacing discrimination by “any employer, labor organization or employment agency” to “person.” Although the supervisor argued that the legislative history of the word change showed that there was no intention to substantively change the statute, the court pointed to exchanges during the legislative discussion that appeared to indicate that some substantive changes may have been made. Given how the word “person” was used throughout the statute, its replacement of “employer, labor organization or employment agency” would be difficult to understand as anything but a substantive change.
Otherwise discriminate against. The court next rejected the supervisor’s argument that the term “otherwise discriminate against” in the statute was limited by its context to include only discrimination that affected the terms or conditions of employment. Rather, the phrase was not limited to acts taking place within the workplace and extended at least to acts of retaliation with some connection to past or future employment. The court stopped short, however, of considering whether the statute encompassed an act of retaliation that had no connection to employment.
The supervisor’s alleged actions connected to the assistant’s past employment because he had written a recommendation in support of her admission to the MBA program, and then made false and damaging statements to the admissions director after the assistant filed suit. The supervisor made his statements to the director in his capacity as the assistant’s former supervisor, and his statements related to her actions while working at the clinic.
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