McLaughlin v. Wilson , 365 Or. 535 ( 2019 )

535
Argued and submitted May 15, at Mt. Hood Community College, Gresham,
Oregon; decision of Court of Appeals affirmed, judgment of circuit court
reversed in part, and case remanded to circuit court for further proceedings
September 12, 2019
Nicole McLAUGHLIN,
Respondent on Review,
v.
Kenneth WILSON, M.D.,
Petitioner on Review.
(CC 13C21746) (CA A160000) (SC S066047)
449 P3d 492
Plaintiff filed complaint alleging that defendant had retaliated against her
ORS 659A.030(1)(f). Defendant moved to dismiss the claim, arguing that his
actions were not retaliation prohibited by that statute. The trial court granted
the motion. The Court of Appeals reversed. Held: (1) As used in ORS 659A.030
(1)(f), “any person” includes individuals who are not employers; (2) “otherwise dis-
criminate” in ORS 659A.030(1)(f) does not require an employment relationship;
(3) defendant’s conduct “otherwise discriminate[d]” against plaintiff.
The decision of the Court of Appeals is affirmed. The judgment of the circuit
court is reversed in part, and the case is remanded to the circuit court for further
proceedings.
On review from the Court of Appeals.*
Thomas M. Christ, Sussman Shank LLP, Portland,
argued the cause and filed the briefs for petitioner on review.
Andrew Altschul, Buchanan Angeli Altschul & Sullivan
LLP, Portland, argued the cause and filed the brief for
respondent on review.
Shenoa Payne, Richardson Wright LLP, Portland, filed
the brief for amicus curiae Oregon Trial Lawyers Association.
Before Walters, Chief Justice, and Balmer, Nakamoto,
Flynn, Duncan, and Nelson, Justices, and Kistler, Senior
Justice pro tempore.**
______________
** On appeal from Marion County Circuit Court, Tracy A. Prall, Judge. 292
Or App 101, 423 P3d 133 (2018).
** Garrett, J., did not participate in the consideration or decision of this case.
536 McLaughlin v. Wilson
WALTERS, C. J.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed in part, and the
case is remanded to the circuit court for further proceedings.
Cite as 365 Or 535 (2019) 537
WALTERS, C. J.
Oregon’s civil rights laws make it an “unlawful
employment practice” for an employer to discriminate on
the basis of any of several protected characteristics. The
law protects that right and others by making it unlawful
“[f]or any person to discharge, expel or otherwise discrim-
inate against any other person because that other person”
has opposed or reported certain unlawful practices. ORS
659A.030(1)(f). In this case, we are asked to decide the scope
of that antiretaliation provision. The question before us is
whether the retaliation prohibited by ORS 659A.030(1)(f)
includes disparaging statements made by defendant, plain-
tiff’s former supervisor, to an admissions officer at plain-
tiff’s MBA program. Defendant offers two reasons why it
would not be: he is not a “person,” and his statements to the
admissions officer did not “otherwise discriminate against”
plaintiff, within the meaning of those terms as used in the
statute. As we explain, we disagree with both arguments.
“Person,” as statutorily defined, includes all “individuals,”
and “otherwise discriminate against” is a broad term that
encompasses defendant’s conduct. We therefore affirm the
decision of the Court of Appeals, McLaughlin v. Wilson, 292
Or App 101, 423 P3d 133 (2018), which ruled in plaintiff’s
favor and remand this case to the trial court for further
proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
Because this case arose out of defendant’s motion
to dismiss, “we assume that the facts alleged in the com-
plaint are true and draw all reasonable inferences in plain-
tiff’s favor.” Bailey v. Lewis Farm, Inc., 343 Or 276, 278, 171
P3d 336 (2007). In 2012, plaintiff began working at Hope
Orthopedics as a medical assistant. While employed at
Hope, plaintiff worked closely with defendant, an orthope-
dic surgeon. Defendant supervised plaintiff’s work and was
responsible for training her. Initially, defendant was pleased
with plaintiff’s work and gave her a very positive perfor-
mance evaluation. When plaintiff later applied to an MBA
program at Willamette University, she asked defendant to
provide a reference, and he wrote her a glowing one.
538 McLaughlin v. Wilson
Over the next few months, defendant began to sexu-
ally harass plaintiff and attempted to initiate a sexual rela-
tionship with her. Because of defendant’s authority at Hope,
and because defendant had served as plaintiff’s reference
for her MBA application, plaintiff feared retaliation if she
reported defendant’s behavior. In June 2013, plaintiff was
accepted into Willamette’s MBA program. After plaintiff
told defendant that she would be leaving Hope soon, defen-
dant’s conduct worsened. He continued his pattern of sex-
ual harassment and criticized plaintiff’s religious beliefs.
Plaintiff then reported defendant’s behavior to Hope.
Hope placed plaintiff on paid leave while it inves-
tigated her complaints, and plaintiff ultimately left Hope
to enter the MBA program without returning to work.
Plaintiff’s complaints against defendant were resolved in
August 2013. Five days later, defendant went to the office of
the Director of Admissions at plaintiff’s MBA program and
asked to speak to the admissions director about “the person
who I wrote a reference for.” Defendant told the admissions
director, falsely, that plaintiff had “left her past two jobs by
getting large amounts of money and a gag order,” and that
defendant was concerned about plaintiff manipulating male
faculty members. Those statements were spread to others at
Willamette, including the dean of the MBA program, and
plaintiff experienced unwanted attention and suffered emo-
tional distress.
Plaintiff filed this action against defendant, raising
several claims, including defamation, intentional infliction
of emotional distress, and the claim that is relevant to this
appeal, retaliation under ORS 659A.030(1)(f).1 That statute
makes it an “unlawful employment practice”
“[f]or any person to discharge, expel or otherwise discrim-
inate against any other person because that other person
has opposed any unlawful practice, or because that other
person has filed a complaint, testified or assisted in any
proceeding under this chapter or has attempted to do
so.”
1
Civil actions for damages caused by certain unlawful employment practices,
including violations of ORS 659A.030, are authorized by ORS 659A.885(1)-(3).
Cite as 365 Or 535 (2019) 539
ORS 659A.030(1)(f). Defendant moved to dismiss plain-
tiff’s retaliation claim, arguing that, because he had not
been plaintiff’s employer when the alleged retaliation had
occurred, he could not be held liable under that provision.
The trial court granted defendant’s motion. The case pro-
ceeded to trial, and plaintiff ultimately prevailed on her def-
amation claim but lost on her intentional infliction of emo-
tional distress claim.
Plaintiff appealed, assigning error to the trial
court’s dismissal of her retaliation claim. Plaintiff argued
that ORS 659A.030(1)(f) prohibits discrimination by
“any person” and therefore was applicable to defendant.
Defendant countered that the statute was not intended to
reach coemployees, and that, in any event, the retaliation
that plaintiff had alleged—retaliation occurring outside
of the workplace—was not the type of discrimination pro-
scribed by ORS 659A.030(1)(f).
The Court of Appeals ruled in plaintiff’s favor,
concluding both that defendant was a “person” within the
meaning of ORS 659A.030(1)(f), and that his statements
to the director of admissions of plaintiff’s MBA program
fell within the ambit of the statute. McLaughlin, 292 Or
App 101. Defendant then petitioned for review, which we
allowed.
II. “ANY PERSON”
A. Text and Context
The disagreement between the parties begins with
the term “person.” Defendant argues that, as used in ORS
659A.030(1)(f), “person” does not include an individual like
himself, who was not an employer. He observes that, prior to
2001, former ORS 659.030(1)(f) (1999), renumbered as ORS
659A.030(1)(f) (2001), had applied only to “any employer,
labor organization or employment agency,” and he contends
that “any person” retains the same meaning, in light of leg-
islative history that, he argues, indicates that the wording
change was not intended to be substantive. The meaning of
“any person” is a question of statutory interpretation, and
we approach it using the methodology outlined in State v.
Gaines, 346 Or 160, 206 P3d 1042 (2009). We begin with an
540 McLaughlin v. Wilson
examination of text and context, and then proceed to consid-
eration of legislative history, to the extent that we find it to
be helpful. Id. at 171-72.
ORS 659A.030(1)(f) makes it an unlawful employ-
ment practice
“[f]or any person to discharge, expel or otherwise discrim-
inate against any other person because that other person
has opposed any unlawful practice, or because that other
person has filed a complaint, testified or assisted in any
proceeding under this chapter or has attempted to do so.”
(Emphasis added.) The term “person” is one that the legis-
lature defines, along with others “[a]s used in * * * chapter”
659A, in ORS 659A.001:
“(9) ‘Person’ includes:
“(a) One or more individuals, partnerships, associa-
tions, labor organizations, limited liability companies, joint
stock companies, corporations, legal representatives, trust-
ees, trustees in bankruptcy or receivers.
“(b) A public body as defined in ORS 30.260.
“(c) For purposes of ORS 659A.145 and 659A.421 and
the application of any federal housing law, a fiduciary,
mutual company, trust or unincorporated organization.”
We are obliged to apply that definition of the term. State v.
Couch, 341 Or 610, 619, 147 P3d 322 (2006); see also Comcast
Corp. v. Dept. of Rev., 356 Or 282, 295, 337 P3d 768 (2014)
(“When the legislature provides a definition of a statutory
term, we of course use that definition.”). And, when we do
so, it seems obvious that defendant would qualify as a “per-
son” within the meaning of ORS 659A.001(9)(a): he is an
individual.
We understand defendant to argue, however, that
there is an implicit, contextual qualification to the first use
of the word “person” in paragraph (f) of ORS 659A.030(1),
such that “person” does not refer to all persons encompassed
within the statutory definition. Rather, he contends that
“person” refers to only persons who are employers and per-
haps to labor organizations and employment agencies as
well.
Cite as 365 Or 535 (2019) 541
Three features of the text and context of ORS
659A.030(1)(f) strongly suggest that there is no such qual-
ification. First, paragraph (f) not only contains no express
qualifications to the meaning of the word “person,” but actu-
ally refers to “any person.” (Emphasis added.) The inclusion
of the word “any,” a term meaning “one indifferently out of
more than two : one or some indiscriminately of whatever
kind,” Webster’s Third New Int’l Dictionary 97 (unabridged
ed 2002), is an indication that the legislature wanted “per-
sons” to refer “indiscriminately” to statutorily defined per-
sons of “whatever kind.”
Second, the word “person” is used four times in
the sentence that comprises paragraph (f). Defendant does
not argue that the second, third, or fourth uses of the word
“person” cannot refer to individuals other than employers.
Yet, “use of the same term throughout a statute indicates
that the term has the same meaning throughout the stat-
ute.” PGE v. Bureau of Labor and Industries, 317 Or 606,
611, 859 P2d 1143 (1993). Moreover, the text of the statute
links the usages. ORS 659A.030(1)(f) makes it unlawful
“[f]or any person to discharge, expel or otherwise discrim-
inate against any other person because that other person”
has engaged in certain protected activities. ORS 659A.030
(1)(f) (emphases added). While the “other person” referred
to must be a different person from the first person referred
to—that is, the statute does not encompass discrimination
by a person against himself or herself—the phrasing other-
wise suggests that “person” and “other person” are drawn
from the same class of persons. That class is defined in
ORS 659A.001(9) and is a broad one that includes persons
other than employers, labor organizations, and employment
agencies.
Finally, a look at the other paragraphs of ORS
659A.030(1) indicates that the legislature understood the
term “person” to mean something different from employ-
ers, labor organizations, and employment agencies, and
used it intentionally in paragraph (f). Paragraphs (a) and
(b) prohibit discrimination by an “employer”; paragraph (c)
prohibits discrimination by a “labor organization”; para-
graph (d) applies to discrimination by an “employer” or an
542 McLaughlin v. Wilson
“employment agency”; and paragraph (e) applies to discrim-
ination only by an “employment agency.” By contrast, para-
graph (f) uses “person”—a more general term. As the Court
of Appeals correctly observed, “[t]hat statutory context
strongly suggests that, had the legislature intended para-
graph (f) to reach only employers (or labor organizations or
employment agencies), it would have said so expressly, as it
did in the related provisions.” McLaughlin, 292 Or App at
107.
At this stage of the analysis, defendant princi-
pally relies on a single piece of context—a related provi-
sion that also uses the term “person.” Paragraph (g) of ORS
659A.030(1) makes it an unlawful employment practice
“[f]or any person, whether an employer or an employee, to
aid, abet, incite, compel or coerce the doing of any of the
acts forbidden under this chapter or to attempt to do so.”
ORS 659A.030(1)(g). Defendant contends that the phrase
“whether an employer or an employee” limits the application
of “person” in paragraph (g) to individuals who are employ-
ers or employees. He then suggests that that restriction in
meaning likewise applies to the other uses of the word “per-
son” in ORS 659A.030, including in paragraph (f).
As defendant acknowledges, the phrase “whether
an employer or an employee” could have been used in para-
graph (g) either to qualify the term “person” (limiting the ref-
erenced persons to employers and employees) or for empha-
sis (clarifying that “person” really does include employees).
Plaintiff and amicus Oregon Trial Lawyers Association
(OTLA) argue that it was intended for the latter purpose.
They note that, when first enacted in 1949, the clause in
question read “whether an employer or an employe[e], or
not,” Or Laws 1949, ch 221, § 5(5), which could not have been
intended as a qualification. They note that the deletion of
“or not” occurred during the codification of Oregon’s laws in
1953 into the Oregon Revised Statutes, see ORS 174.510-520
(enacting that codification as law and repealing prior “statute
laws”), and argue that the deletion was not intended to make
a substantive change. Defendant contends, however, that
the “whether” clause limits paragraph (g) to employers and
employees, and that any other reading creates superfluity.
Cite as 365 Or 535 (2019) 543
We need not settle that dispute to reject the contex-
tual argument that defendant advances here. If “whether
an employer or an employee” is included in paragraph (g)
only for emphasis, then there is no basis from which to infer
a limitation on the meaning of the word “person” as used in
paragraph (f). If, on the other hand, “whether an employer
or an employee” qualifies the meaning of “person” in para-
graph (g), then that only strengthens the case that “person”
as used in paragraph (f) is not subject to such a qualifica-
tion. The qualifying clause is absent from paragraph (f)
and “use of a term in one section and not in another section
of the same statute indicates a purposeful omission * * *.”
PGE, 317 Or at 611.
In summary, we do not find support in the statute’s
text or context for the interpretation of the term “person”
that defendant advances.
B. Legislative History
Defendant suggests, however, that we consult legis-
lative history, and we recognize that it is appropriate to do
so for limited purposes:
“Legislative history may be used to confirm seemingly
plain meaning and even to illuminate it; a party also may
use legislative history to attempt to convince a court that
superficially clear language actually is not so plain at
all—that is, that there is a kind of latent ambiguity in the
statute.”
Gaines, 346 Or at 172 (footnote omitted). Defendant con-
tends that, in this case, the legislative history demonstrates
that the legislature’s replacement in ORS 659A.030(1)(f) of
the phrase “employer, labor organization, or employment
agency” with the word “person” was not intended to make
substantive changes to existing statutes. Consequently,
defendant argues, we should either (1) interpret para-
graph (f) to reach only as far as its predecessor and limit
its scope to employers, labor organizations, and employment
agencies; or (2) correct the legislature’s mistake in enacting
text that expanded the scope of paragraph (f).
The text now found in ORS 659A.030(1)(f) was first
introduced in 1949, as part of Oregon’s Fair Employment
544 McLaughlin v. Wilson
Practices Act. Or Laws 1949, ch 221, § 5(4). At that time, the
statute made it an unlawful employment practice for “any
employer, labor organization or employment agency to dis-
charge, expel or otherwise discriminate against any person
because he has opposed any practices forbidden under this
act or because he has filed a complaint, testified or assisted
in any proceeding under this act.” Id. (Emphasis added.)
The change that gives rise to this case, the replace-
ment of “employer, labor organization or employment agency”
with “person,” occurred in 2001, as a result of the enactment
of House Bill (HB) 2352 (2001). That bill was drafted by the
Oregon Law Commission, and the change was part of an
effort to bring the civil rights statutes administered by the
Bureau of Labor and Industries (BOLI) into a single chapter
and to “reorganize the statutes into more logical order, clar-
ify the administrative process through which the bureau
enforces the laws, and make the statutes easier to under-
stand and use.” Exhibit F, House Committee on Judiciary,
Subcommittee on Civil Law, HB 2352, Feb 5, 2001 (state-
ment of Jack Roberts, Commissioner of BOLI). Given that
purpose, the Oregon Law Commission reported that it had
generally “refrained from changing [the] substance of the
civil rights statutes.” Id.
Defendant points to several statements as indica-
tors that the legislature similarly understood HB 2352 as
enacting no substantive change. For example, a member of
the Oregon Law Commission (OLC) testified at a committee
hearing:
“One of the * * * mantras that we had through this process
is that we did not want to make any substantive changes,
we really were looking at trying to make this a more user-
friendly statute * * *. [The] purpose was simply to go for-
ward and try to do the reorganization as indicated without
any substantive changes.”
Tape Recording, House Committee on Judiciary, Subcom-
mittee on Civil Law, HB 2352, Feb 5, 2001, Tape 9, Side A
(statement of OLC member Jeff Carter). And the legisla-
tive counsel credited with drafting the bill gave a similar
explanation:
Cite as 365 Or 535 (2019) 545
“[T]here was an extreme sensitivity to not making changes
in substance, perhaps more so than almost any other group
I’ve worked with probably over the last few sessions.”
Id. (statement of Dave Heynderickx).
However, the discussion in the legislature demon-
strates that at least some legislators recognized that the line
between changes in substance and changes in procedure
often is a fine one. We find revealing an exchange between
Senator John Minnis, Chair of the Senate Committee on
Judiciary, and Marcia Ohlemiller, legal policy advisor for
BOLI, one of the bill’s proponents. Ohlemiller began her
summary of the bill for the committee by explaining that,
“[o]ver the years, a number of different changes have been
made to Oregon civil rights laws. * * * Along the way, as
different substantive protections were added, some pro-
cedural things didn’t get put in there consistently all the
way through. * * * [F]or instance, what we call aider and
abettor liability, which allows enforcement against people
who aren’t necessarily the employer but who participate in
discrimination, is available in some types of discrimina-
tion but not in others. Cease and desist orders, which are
a tool of the Commissioner to order a respondent to stop
doing something that’s been determined to be illegal [are]
available under some statutes and not others. And relief for
retaliation for reporting civil rights violations [is] available
under some types of discrimination and not others.
“* * * * *
“We don’t believe from looking at the statutes that any of
this was intentional. It appears that with great enthusiasm
some protections were put in, here and there, new things,
but all the pieces weren’t put in there to enforce those types
of violations. * * * Every attempt was made to keep it proce-
dural and not substantive.”
Tape Recording, Senate Committee on Judiciary, HB 2352,
Apr 30, 2001, Tape 115, Side A (statement of Marcia
Ohlemiller) (emphasis added). At that point, Senator Minnis
interjected, “I’m a little unclear as to what you just said.
* * * Did you grant certain authorities that weren’t previ-
ously granted?” Id. (statement of Sen John Minnis). After a
brief back-and-forth, Senator Minnis clarified his question:
546 McLaughlin v. Wilson
“What I’m trying to get clear in my mind is whether these
were just areas of statutory law that were spread out in
statutory law and you’ve now reorganized everything in a
logical, sequential order or if you have made some assump-
tions about certain enforcement actions or investigative
powers, and you’ve added investigative powers or enforce-
ment actions where you didn’t previously have statutory
authority?”
Id. (statement of Sen John Minnis). Ohlemiller gave the fol-
lowing response:
“It was reworked and reorganized and to the best of our
ability we constructed what we believed from the language
that was there and the history we could find to be the ways
these were supposed to be enforced.”
Id. (statement of Marcia Ohlemiller). Senator Minnis
responded, “What I’m sensing you’re telling me is that
* * * there [was] some assumption about what the legisla-
ture either intended or didn’t.” Id. (statement of Sen John
Minnis). After some further discussion, Senator Minnis sum-
marized his takeaway from the hearing: “[T]here are some
substantive changes in here but they’re minor, I assume, or
conforming kind of substantive changes.” Id. (statement of
Sen John Minnis).
That exchange suggests that, as one other legisla-
tor observed, “What’s substantive is sometimes in the eye of
the beholder and there are degrees, I guess, of substantive-
ness * * *.” Tape Recording, House Committee on Judiciary,
Subcommittee on Civil Law, HB 2352, Feb 5, 2001, Tape 9,
Side A (statement of Rep Lane Shetterly). Put another way, a
premise of defendant’s reading of legislative history is that,
when the bill’s drafters and proponents told the legislature
that the bill contained no “substantive” changes, what they
meant was that it did not change the scope of any provi-
sions. However, based on the exchange with Senator Minnis,
it appears that Ohlemiller, at least, had a different under-
standing of what the word “substantive” meant. Thus, the
legislators who enacted the bill may have understood that it
included some changes that the drafters believed were nec-
essary to carry out the legislature’s overall intent, some of
which could be thought of as matters of substance.
Cite as 365 Or 535 (2019) 547
Even if we were to accept the idea that the legis-
lature did not intend to make any changes to the scope of
existing statutes, it would be difficult to understand the
replacement of the phrase “employer, labor organization or
employment agency” with the word “person” as anything
other than such a change. Defendant suggests that the word
“person” can be understood as a convenient shorthand for
those three entities because they are “the subjects of the
unlawful employment practices described in the other para-
graphs of that subsection.”2 But, as discussed, the word “per-
son” does not have that shorthand meaning in other parts
of the sentence comprising ORS 659A.030(1)(f), and giving
the word that meaning only when it is first used in that sen-
tence would be an unlikely drafting choice. Such a change
would work against the principal goal of “mak[ing] the stat-
utes easier to understand and use,” House Committee on
Judiciary, Subcommittee on Civil Law, HB 2352, Feb 5, 2001
(statement of Jack Roberts, Commissioner of BOLI), and we
doubt that that was what the legislature had in mind.3
Likely for that reason, defendant’s more forcefully
argued contention is that the change to the text was simply
a mistake, one that this court should correct by declining
to give it any effect. When such mistakes occur, defendant
contends, “the courts are supposed to honor the intent, not
the mistake—to give effect to the legislative purpose, not
the nonconforming text.” Here, though, as the foregoing dis-
cussion of the legislative history shows, there is no persua-
sive indication that the legislature’s change to the text was
a mistake. The legislative history does not clearly indicate
that the legislature did not intend to expand the scope of
2
That suggestion is founded on an inaccurate premise, because, even on
defendant’s reading, paragraph (g) applies to employees as well as to employers.
3
In the alternative, defendant observes that ORS 659A.030(1)(f), both before
and after 2001, protects persons who had opposed practices or made reports
concerning unlawful practices under civil rights statutes that are not related to
employment, such as ORS 659A.403 (prohibiting discrimination in places of pub-
lic accommodation) and ORS 659A.421 (prohibiting discrimination in real estate
transactions). Defendant suggests that the replacement of “any employer, labor
organization, or employment agency” with “any person” may have been intended
to expand the scope of paragraph (f) to encompass more retaliation relating to
those other provisions. If that argument is correct, a question that we do not
address, it would support, rather than undermine, an understanding that the
legislature intended to make a change to the scope of paragraph (f).
548 McLaughlin v. Wilson
ORS 659A.030(1)(f). As noted, that history can be under-
stood as indicating an intent to provide consistency, even if
that might result in changes to the scope of some provisions.
Moreover, we long have recognized that “[t]his court
cannot correct clear and unambiguous language for the leg-
islature so as to better serve what the court feels was, or
should have been, the legislatur e’s intent.” Monaco v. U. S.
Fidelity & Guar., 275 Or 183, 188, 550 P2d 422 (1976); see
also State ex rel. Everding v. Simon, 20 Or 365, 373-74, 26
P 170 (1891) (stating the same principle). And, significantly,
that is the manner in which the legislature has asked us to
interpret its enactments. See ORS 174.010 (“In the construc-
tion of a statute, the office of the judge is simply to ascertain
and declare what is, in terms or in substance, contained
therein, not to insert what has been omitted, or to omit what
has been inserted.”).
That rule is in no way at odds with the fact that
the “paramount goal” of our interpretive methodology is
oriented around the “paramount goal” of “discerning the
legislature’s intent.” Gaines, 346 Or at 171. Rather, “it is
for the legislature to translate its intent into operational
language.” Monaco, 275 Or at 188. Beyond that, “[o]nly the
text of a statute receives the consideration and approval of
a majority of the members of the legislature, as required to
have the effect of law.” Gaines, 346 Or at 171. In this case,
where defendant’s principal evidence of a mistake is legis-
lative history indicating, at most, a general effort to refrain
from substantive changes, we see no reason to doubt that
the legislature’s chosen text is the best window to its intent.
“[L]egislative history cannot substitute for, or contradict the
text of, that statute.” White v. Jubitz Corp., 347 Or 212, 223,
219 P3d 566 (2009).4 We conclude that, as relevant here, the
4
For a contrary conclusion, defendant relies on the California Supreme
Court’s decision in Jones v. Lodge at Torrey Pines Partnership, 42 Cal 4th 1158,
177 P3d 232 (2008). That case is similar to this one in its broad strokes—the
California legislature added “person” to its employment discrimination retalia-
tion statute without much in the way of explanation, and the California Supreme
Court was asked to decide whether that extended its scope to cover supervisors—
but is meaningfully different in its details. Because that decision was issued well
after the 2001 change in Oregon law, that decision cannot be considered in eval-
uating the Oregon Legislative Assembly’s intent; it is helpful only to the extent
that it is persuasive. The specifics of that decision are different enough that we
do not find the California Supreme Court’s reasoning helpful here.
Cite as 365 Or 535 (2019) 549
word “person” in ORS 659A.030(1)(f) includes an “individ-
ual” such as defendant. ORS 659A.001(9)(a).
III. “OTHERWISE DISCRIMINATE AGAINST”
We now turn to the second disputed phrase in ORS
659A.030(1)(f), “otherwise discriminate against.” Plaintiff
argues that that phrase encompasses differential treatment
occurring outside of the workplace, even when that treat-
ment has no connection to employment at all. Defendant
contends that “otherwise discriminate” is limited by its
context—the two preceding terms “discharge” and “expel”—
and the canon of ejusdem generis to discrimination affecting
the terms or conditions of employment. As we explain, we
do not need to determine the full breadth of “otherwise dis-
criminate against” to conclude that defendant’s actions fall
within it.
We start with PSU Association of University
Professors v. PSU, 352 Or 697, 291 P3d 658 (2012), because
plaintiff argues that, in that case, we decided that the term
“otherwise discriminate” in ORS 659A.030(1)(f) includes
retaliatory acts outside the employment context. In PSU
Association of University Professors, we were asked to con-
sider whether ORS 659A.030(1)(f) prohibited a collective
bargaining agreement that provided a grievance procedure,
but relieved the employer of all obligations under that pro-
cedure if the employee filed a complaint with an outside
agency or commenced a lawsuit. Id. at 699-700. That case
thus involved retaliation within the employment context
for filing a complaint in a court or outside agency, and the
question was not whether the phrase “otherwise discrimi-
nate against” encompassed conduct outside that context but
whether the defendant’s conduct was sufficiently severe to be
discriminatory. Nevertheless, we focused on the term “other-
wise discriminate against” in our analysis and, applying
our ordinary interpretive methodology, reasoned that para-
graph (1)(f) “is written in broad terms to safeguard access”
to the enforcement mechanisms put in place by ORS chapter
659A. Id. at 710. Finding the United States Supreme Court’s
interpretation of the antiretaliation provision in Title VII
to be “useful additional context,” id. at 712, we drew on the
550 McLaughlin v. Wilson
Supreme Court’s decision in Burlington N. & S. F. R. Co. v.
White, 548 US 53, 126 S Ct 2405, 165 L Ed 2d 345 (2006), in
holding that ORS 659A.030(1)(f)
“restricts an employer from engaging in retaliatory activ-
ity that reasonably would impede or deter employees from
pursuing their rights under that chapter.”
PSU Association of University Professors, 352 Or at 713.
PSU Association of University Professors provides
some guidance here. In parts of his arguments about the
meaning of “otherwise discriminate against,” defendant
asks us to rule that paragraph (f) is limited to discrimi-
nation that affects the “terms, conditions or privileges of
employment,” in the same way that paragraph (b) expressly
is so limited.5 Paragraph (f) does not use the words “terms,
conditions or privileges of employment,” and that position
is one that we necessarily rejected in PSU Association of
University Professors in holding that the relevant standard
for paragraph (f) is whether the act was one “that reason-
ably would impede or deter employees from pursuing their
rights under that chapter.” Id. at 713; see also Burlington,
548 US at 64 (holding that Title VII’s “antiretaliation provi-
sion, unlike the substantive provision, is not limited to dis-
criminatory actions that affect the terms and conditions of
employment”). In applying that standard in PSU Association
of University Professors, we did not ask whether the griev-
ance procedure was a “term,” “condition,” or “privilege” of
employment, but looked to whether “the employer’s policy
would tend to dissuade employees from pursuing their pro-
tected rights because exercising those rights would result
in a substantive difference in treatment,” treating the ques-
tion as identical under Title VII and ORS 659A.030(1)(f).
Id. at 717.
5
ORS 659A.030(1)(b) makes it an unlawful employment practice
“[f]or an employer, because of an individual’s race, color, religion, sex, sexual
orientation, national origin, marital status or age if the individual is 18 years
of age or older, or because of the race, color, religion, sex, sexual orientation,
national origin, marital status or age of any other person with whom the
individual associates, or because of an individual’s juvenile record that has
been expunged pursuant to ORS 419A.260 and 419A.262, to discriminate
against the individual in compensation or in terms, conditions or privileges
of employment.”
Cite as 365 Or 535 (2019) 551
As helpful as PSU Association of University
Professors is, it does not decide the matter before us. In
that case, we noted the similarity of our standard to the
standard in Burlington, and it also is true that Burlington
had held that Title VII’s “antiretaliation provision extends
beyond workplace-related or employment-related retaliatory
acts and harm.” Burlington, 548 US at 67. But whether ORS
659A.030(1)(f) extended that far was not a question that
we had cause to consider in PSU Association of University
Professors, and our statement in that case referring to
retaliation by an “employer” against “employees” was sim-
ply a statement that was consistent with the facts of that
case. Id. at 713. Thus, the question whether ORS 659A.030
(1)(f) applies to discriminatory acts that take place outside
of the workplace is an open one, and we resolve it through
our ordinary interpretive methodology. See Gaines, 346 Or
at 160 (articulating that methodology).
Turning again to the text of ORS 659A.030(1)(f),
defendant suggests that, applying the canon of ejusdem
generis, “otherwise discriminate against” should be limited
to “acts that adversely affect employment status or union
membership but don’t go so far as to terminate it.” Defendant
contends that the phrase should not encompass actions that
occur outside the workplace and, in the context of discrimi-
nation by employers, should be limited to conduct affecting
terms and conditions of employment.
Ejusdem generis is an interpretive principle under
which “a nonspecific or general phrase that appears at the
end of a list of items in a statute is to be read as referring
only to other items of the same kind.” Vannatta v. Keisling,
324 Or 514, 533, 931 P2d 770 (1997). “That does not mean, of
course, that the specific examples constitute the universe of
items to which the general term refers; rather, it means only
that our interpretation of the general term includes con-
sideration of those specific examples.” Schmidt v. Mt. Angel
Abbey, 347 Or 389, 404, 223 P3d 399 (2009). We agree with
defendant that the structure of the phrase “discharge, expel,
or otherwise discriminate” in paragraph (f) makes it appro-
priate to apply ejusdem generis to interpret “otherwise dis-
criminate.” “Discriminate” is a nonspecific term, and the
552 McLaughlin v. Wilson
inclusion of “otherwise” suggests that its content is defined
in relation to the two prior terms in the list.6
“[W]hen using the principle of ejusdem generis,
the court seeks to find, if it can, a common characteristic
among the listed examples.” Schmidt, 347 Or at 405 (empha-
sis in original). Here the common characteristic cannot be
an employment relationship or terms and conditions of
employment. Only one of the two listed forms of discrim-
ination—“discharge”—refers to an action taken within an
employment relationship or that affects the terms and con-
ditions of employment. The other listed term, “expel,” more
naturally speaks to a loss of membership in a labor orga-
nization. Tellingly, “expel” appears in ORS 659A.030(1)(c),
which prohibits discrimination by labor organizations, but
not in paragraphs (a), (b), or (d), which prohibit discrimina-
tion by employers. Rather than suggesting that “otherwise
discriminate” is limited to an employment relationship or
the terms and conditions of employment, the inclusion of
“expel” is a strong indicator that the discrimination about
which the legislature was concerned in paragraph (f) was
not so limited.
Defendant’s further suggestion that “otherwise dis-
criminate” should be read to be limited to “acts that
adversely affect employment status or union membership”
also finds no purchase. Even before the addition of the word
“person” in 2001, a change that no party argues narrowed
the meaning of “otherwise discriminate,” paragraph (f) was
concerned with more than just discrimination by employ-
ers and labor organizations. Between 1949 and 2001, that
6
Amicus OTLA contends that it is inappropriate to apply ejusdem generis
when a list concludes with the word “otherwise.” The only case cited for that
proposition, Jennings v. State Ind. Acc. Comm., 190 Or 557, 227 P2d 829 (1951),
is inapposite. In that case, the question was whether the plaintiff “was adapting
or assembling [a] Ferris wheel ‘for sale or otherwise.’ ” Id. at 561. In interpreting
the term “otherwise,” we noted that, “[s]ince the term ‘sale’ has a limited mean-
ing, there is nothing else that might be deemed of a kindred or similar nature;
therefore, the rule of ejusdem generis does not apply,” id at 561—that is, ejusdem
generis could not apply, because there was only one preceding term in the list,
rather than two or more terms with something in common. More recently, we did
apply ejusdem generis in the context of a list with multiple terms concluding with
“otherwise.” See Southern Pacific Trans. Co. v. Dept. of Rev., 295 Or 47, 62, 664
P3d 401 (1983) (“The term ‘otherwise’ broadens the definition of property but,
construed by the ejusdem generis rule, stays within this familiar arena.”).
Cite as 365 Or 535 (2019) 553
paragraph applied to “employer[s], labor organization[s] or
employment agenc[ies].” See former ORS 659.030(1)(f) (1999),
renumbered as ORS 659A.030(1)(f) (2001) (emphasis added);
Or Laws 1949, ch 221, § 5(4). If “otherwise discriminate
against” were limited in the manner that defendant pro-
poses, it would fail to include typical forms of retaliation by
employment agencies, such as “fail[ing] or refus[ing] to refer
for employment,” which is one of the forms of discrimina-
tion by employment agencies prohibited by ORS 659A.030
(1)(e). The inclusion of employment agencies in the earlier
version of paragraph (f) indicates that the legislative con-
cerns included retaliation not only against current employ-
ees, but also against job seekers in general. A categorical
limitation of ORS 659A.030(1)(f) to actions within an exist-
ing employment relationship or a labor union membership
would be inconsistent with a legislative intent to maintain
the statute’s original protections.
Another indicator that paragraph (f) is broader
than defendant contends is found in the forbidden bases
for discrimination. Paragraph (f) prohibits discrimination
not only against individuals who have filed complaints of
discrimination, but also precludes discrimination against
any person who has “testified or assisted in any proceed-
ing under this chapter” and against any person who “has
opposed any unlawful practice.” That text encompasses
many individuals who are not necessarily current employ-
ees of offending employers, current members of offending
unions, and current job seekers using offending agencies.
Once again, a limitation of “otherwise discriminate” to
the terms and conditions of employment or active employ-
ment relationships would more or less nullify the more
expansive choices that the legislature made elsewhere in
paragraph (f).7
Our review of that context and statutory history con-
vinces us that ORS 659A.030(1)(f) is not strictly limited to
7
Defendant argues that, under the 1949 Fair Employment Practices Act,
“[t]here was no remedy outside of the employment setting and thus no relief for
anyone who was no longer employed.” That is incorrect, as the Act authorized
cease and desist orders against parties engaging in unlawful employment prac-
tices. Or Laws 1949, ch 221, § 7. A nonemployee complainant—someone in a posi-
tion similar to plaintiff, for example—might well benefit from an enforcement of
an order to cease and desist against a retaliatory former employer.
554 McLaughlin v. Wilson
acts inside an employment relationship and at least extends
to retaliation with a nexus to past or future employment.
Plaintiff suggests that it extends further and can include
acts with no connection to employment at all. In this case,
we need not chart the outer limits of conduct reached by the
phrase “otherwise discriminate against” in paragraph (f);
the facts before us pass within its orbit.8 Here, according
to the complaint, defendant first recommended plaintiff to
Willamette’s MBA program on the basis of her work perfor-
mance at Hope, which he observed while supervising her
employment. Then, in response to her filing a complaint
against him with their mutual employer, he reached out to
the director of admissions to the MBA program and quali-
fied that recommendation by making false statements about
plaintiff’s actions with her last two employers. The acts of
retaliation alleged in the complaint have a clear nexus to
plaintiff’s prior employment, because defendant’s state-
ments were made as plaintiff’s former supervisor and per-
tained to her actions at Hope. They also relate to plaintiff’s
access to future employment through the degree that she
was pursuing. And, from the facts alleged, a reasonable fact-
finder could find that defendant’s activity reasonably would
impede or deter an employee from pursuing her rights under
ORS chapter 659A. See Bailey, 343 Or at 278 (“In reviewing
the trial court’s ruling dismissing plaintiff’s complaint, we
assume that the facts alleged in the complaint are true and
draw all reasonable inferences in plaintiff’s favor.”).
IV. CONCLUSION
To sum up, we agree with plaintiff that, when ORS
659A.030(1)(f) says “person,” it means “person” as defined by
ORS 659A.001(9), which includes “one or more individuals.”
Defendant falls within that definition, and thus he can be
8
ORS 659A.030(1)(f) extends to retaliation for opposition to “any unlawful
practice,” which includes prohibited practices with no connection to employment.
See ORS 659A.403 (prohibiting discrimination in places of public accommoda-
tion); ORS 659A.421 (prohibiting discrimination in real estate transactions). As
a result of the change from “employer, labor organization, or employment agency”
to “person” in paragraph (f), reading “otherwise discriminate against” not to
require any nexus to employment would allow ORS 659A.030(1)(f) to be used
as an antiretaliation provision for those other statutes. Whether such a reading
would be permissible and intended by the legislature is a consequential question,
and one that we do not decide.
Cite as 365 Or 535 (2019) 555
held liable under ORS 659A.030(1)(f). In addition, “other-
wise discriminate against,” as used in ORS 659A.030(1)(f),
is not limited to acts that take place inside the workplace.
The acts alleged by plaintiff in her complaint have a nexus
to her prior employment and fall within its scope. The trial
court therefore erred in dismissing plaintiff’s retaliation
claim.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed in part, and the case
is remanded to the circuit court for further proceedings.