Ogden v. Bureau of Labor, s. 26-81

• Court: Court of Appeals of Oregon
• Writing for the Court: WARREN; ROSSMAN
• Citation: 682 P.2d 802,68 Or.App. 235
• Parties: , 37 Empl. Prac. Dec. P 35,405 Lucille OGDEN, dba Lucille's Hair Care, Petitioner, v. BUREAU OF LABOR, Mary Roberts, Commissioner, Respondent. STATE of Oregon, ex rel. Mary Wendy ROBERTS, Commissioner of the Oregon Bureau of Labor and Industries, Respondent, v. Lucille OGDEN, dba Lucille's Hair Care, Appellant. 02813; CA A27956; A29998.
• Docket Number: Nos. 26-81,A8305,s. 26-81
• Decision Date: 27 July 1984

Page 802

682 P.2d 802 68 Or.App. 235, 37 Empl. Prac. Dec. P 35,405 Lucille OGDEN, dba Lucille's Hair Care, Petitioner,
v.
BUREAU OF LABOR, Mary Roberts, Commissioner, Respondent.
STATE of Oregon, ex rel. Mary Wendy ROBERTS, Commissioner of
the Oregon Bureau of Labor and Industries, Respondent,
v.
Lucille OGDEN, dba Lucille's Hair Care, Appellant. Nos. 26-81, A8305 02813; CA A27956; A29998. Court of Appeals of Oregon. Argued and Submitted Jan. 13, 1984.
Decided May 9, 1984.
Reconsideration Denied July 27, 1984.

[68 Or.App. 237]

Page 805

Charles C. Erwin, Portland, argued the cause and filed the briefs for petitioner.

William F. Nessly, Jr., Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

[68 Or.App. 238] WARREN, Judge.

This is an employment discrimination case in which the Commissioner of Labor found that petitioner, an employer, had discriminated against the complainant, Miller, by refusing to hire her because of her age, in violation of ORS 659.030(1)(a). The commissioner's order directed petitioner to cease and desist from discriminating against any prospective employe on the basis of age and to pay Miller $12,143.65 in damages for lost wages and $4,766.76 in prejudgment interest, totalling $16,910.41. In this petition for judicial review, petitioner seeks reversal of the entire order. We affirm but modify the damage award. ¹

Miller filed a complaint with the Bureau of Labor on May 7, 1979, alleging that petitioner had discriminated against her on

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the basis of age. The commissioner held a hearing on July 15, 1982, after which she issued the final order challenged in this appeal by petitioner. The order was supported in part by the following ultimate findings of fact:

"1. On February 13, 1979, an advertisement placed by Respondent in a Portland, Oregon newspaper sought a 'full or part time' beautician with 'experience,' 'for a retirement home' beauty salon which Respondent owned and operated. Actually, Respondent was seeking two full-time beauticians who would work on Saturdays.

"2. On February 13, 1979, Complainant was thirty years old and a licensed beautician who had experience working with elderly persons both as a beautician and in other types of employment. She was also unemployed.

"3. Complainant was qualified for the positions for which respondent sought applicants in her February 13, 1979, advertisement.

"4. On or about February 13, 1979, Complainant saw Respondent's advertisement. Because she was looking for work as a beautician and preferred to work with elderly clients, Complainant answered Respondent's advertisement immediately. Complainant talked with Respondent twice about Respondent's openings, first by telephone and later in [68 Or.App. 239] person. Respondent's first query of Complainant was what was Complainant's age. In response to Complainant's answer, Respondent voiced her concern that Complainant was, in effect, too young to work with the elderly people who composed almost all of the clientele at Respondent's salon. Respondent labelled Complainant in terms of her age and had such strong misgivings about Complainant's age that she did not express interest in Complainant's experience or qualifications during her two encounters with Complainant.

"5. At the time Complainant answered Respondent's advertisement, the youngest of Respondent's four beauticians was 46 years old.

"6. Complainant and Irene Bynum were the only two applicants for Respondent's openings who remained interested in them after being interviewed by Respondent. Ms. Bynum was 49 years old at the time. In evaluating the qualifications of Complainant and Ms. Bynum, Respondent considered three factors, one of which was the age of each of them. Respondent hired Ms. Bynum. Respondent did not hire or consider hiring Complainant.

"7. Respondent maintains that the only reason she did not hire Complainant was Complainant's alleged refusal to work for her full-time or on Saturdays. In fact, Complainant wanted full-time work and expected (and was willing) to work on Saturdays. Ms. Bynum, on the other hand, was available to work only two days per week, Tuesday and Saturday.

"8. Respondent did not hire or consider hiring Complainant for employment because of Complainant's age.

" * * * "

The record shows that these factual findings are supported by substantial evidence, and therefore we are bound by them. ORS 183.482(8)(c).

Petitioner raises five assignments of error: (1) The commissioner erred in holding that ORS 659.030(1)(a) applies to a non-Oregon resident. (2) The commissioner erred in finding that the employer declined to hire claimant on the basis of her age. (3) The commissioner erred in holding that she had the authority to award money damages. (4) The commissioner erred in awarding prehearing interest. (5) The commissioner erred in not disclosing the investigative file. We address each assignment in order.

[68 Or.App. 240] First, petitioner claims that the commissioner erred in applying the protections against unlawful employment practices contained in ORS 659.030(1)(a) to a Washington resident. She argues that ORS

Page 807

659.022, ² expressing a public policy to protect "inhabitants of this state" from certain arbitrary barriers to employment, restricts these protections to Oregon residents. We do not agree. The full text of the policy statement ensures those protections to "all people within the state," and unlawful employment practices are defined as certain acts of discrimination against "an individual." ORS 659.030(1)(a). Although Miller was a Washington resident, the discrimination took place in Oregon. Under these circumstances, we hold that the commissioner did not err in accepting jurisdiction over a charge of employment discrimination alleged to have been committed within the boundaries of this state. ³

In her second assignment, petitioner argues that the commissioner's finding that petitioner refused to hire Miller because of her age does not constitute an unlawful employment practice in violation of ORS 659.030(1)(a). Petitioner initially contends that the relevant statute was intended to protect an employe possessed of age, not of youth. The plain message of the statute is otherwise. ORS 659.030(1)(a) defines an unlawful employment practice:

"For the purposes of ORS 659.010 to 659.110, 659.227, 659.330, 659.340 and 659.400 to 659.435, it is an unlawful employment practice:

"(a) For an employer, because of an individual's race, religion, color, sex, national origin, marital status or age if the [68 Or.App. 241] individual is 18 years of age or older and under 70 years of age, or because of the race, religion, color, sex, national origin, marital status or age of any other person with whom the individual associates, or because of a juvenile record, that has been expunged pursuant to ORS 419.800 to 419.839, of any individual, to refuse to hire or employ or to bar or discharge from employment such individual. However, discrimination is not an unlawful employment practice if such discrimination results from a bona fide occupational requirement reasonably necessary to the normal operation of the employer's business."

Miller is over the age of 18 and under the age of 70 and is entitled to rely on this statute.

Petitioner further argues, and the dissent agrees, that the commissioner must find that age was the sole factor in the decision not to hire Miller in order to constitute an unlawful employment practice under ORS 659.030(1)(a). To support this position, petitioner relies solely on the policy stated in ORS 659.015:

"It is declared to be the public policy of Oregon that available manpower should be utilized to the fullest extent possible. To this end the abilities of an individual, and not any arbitrary standards which discriminate against an individual solely because of his age, should be the measure of the individual's fitness and qualification for employment."

The dissent concludes that the word "solely" used in the statute demonstrates a legislative purpose to allow consideration of age as a hiring criterion, if at least one other factor can be identified in the decision not to hire. We are not persuaded.

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The policy statement contained in ORS 659.015 is a part of the age discrimination legislation enacted in 1959 as a "positive approach" to the very real problem of discrimination in employment because of age. ⁴ Companion bills, SB 16 and [68 Or.App. 242] SB 17, prohibited public and private employers from discriminating against an individual in employment decisions "because of age."

Senate Bill 17, which became former ORS 659.024 (repealed by Or.Laws 1977, ch. 770, § 1), provided, in pertinent part:

"(1) It is an unlawful employment practice for an employer to refuse to hire or employ or to bar, discharge, dismiss, reduce, suspend or demote any individual because of his age if the individual is 25 years of age or older and under 65 years of age; * * *."

Senate Bill 16, which became former ORS 659.026 (repealed by Or.Laws 1977, ch. 970, § 1) provided, in pertinent part:

"(1) It is an unlawful employment practice for a public employer or any person acting for a public employer to disqualify or discriminate against any individual in any civil service entrance, appointment or promotion examination or rating, or to refuse to hire, employ or reemploy or to bar, discharge, dismiss, reduce, suspend or demote any individual because of his age if the individual is 25 years of age or older and under 65 years of age; * * *."

The policy statement in ORS 659.015 containing the word "solely" applied to the language in former ORS 659.024 and 659.026 proscribing discrimination "because of age." This is the current language of ORS 659.030(1)(a), as well as the language in the federal age discrimination in...