Oregon’s anti-discrimination statute allows an employee alleging employment discrimination to file either a lawsuit (which results in a jury trial) or an administrative complaint with the Oregon Bureau of Labor and Industries (which results in an administrative hearing with no jury). In Emerald v. Bureau of Labor, the employer argued that allowing an employee to arbitrarily choose whether or not there will be a jury trial violates the employer’s right to a jury trial under the Oregon Constitution. Not so, ruled the Oregon Court of Appeals earlier this week.
Article I, Section 20 of the Oregon Constitution states that "[n]o law shall be passed granting any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." Section 20, however, applies only to laws that regulate on the basis of a "true class" rather than a classification made by law alone. The court rejected the employer’s argument reasoning: "[a]ssuming that employer is a ‘citizen’ under Article I, section 20, employer does not explain, and we do not understand, how it is a member of a ‘true class’ that has been denied equal privileges."
Bummer. But, even if the employer had won, this case would have had little impact on employment litigation. Most employees who are suing their employers file with BOLI, but withdraw their complaints to file suit in state or federal court where the damages awarded are generally greater. Still, the Stoel Rives World of Employment’s gotta hand it to their creativity.