House Bill 2800 aims to clarify Oregon’s law prohibiting age discrimination but would do the opposite. Not only would it prohibit employers from considering a fundamental thing like experience when making employment decisions, but the bill also would create a presumption of wrongdoing, putting employers in the position of having to prove a negative.
HB 2800 would redefine “because of age” in employment discrimination law, including in the definition such “proxy” characteristics as salary and length of service with an employer. Moreover, the definition would not be limited to listed proxy examples and would be “liberally construed.”
Oregon law already protects employees aged 18 and older from age discrimination. In doing so, it goes even further than federal law, which protects employees 40 and older. Since it would broaden what is considered age discrimination but keep in place that lower age threshold, HB 2800 likely would have the perverse effect of making current employment practices designed to protect older employees illegal. The ill-defined nature of things like “proxy for age” coupled with the “liberally construed” requirement would create confusion and unintended consequences.
Public and private employers alike rely on seniority systems to benefit older employees. For example, employers frequently conduct layoffs on a “reverse seniority” basis so that the least senior employees are let go first. It is additionally a standard provision in collective bargaining agreements that employees with longer service receive higher pay and can even bump less-senior employees for open positions. Using the provisions of HB 2800, any employee who is aged 18 and older would be empowered to sue not just private employers, but public employers as well, based on those long-standing practices.
HB 2800 also would also require employers to prove age was not a factor in an adverse employment decision. Switching the burden of proof from employees to employers would be an extreme deviation from longstanding state and federal discrimination law. This switch would require employers to prove a negative, which is difficult if not impossible even when no wrongdoing took place. This is not seen anywhere else in discrimination law.
Even as it failed to clarify age-discrimination law, HB 2800 upend employment relations in Oregon, cause Oregon’s employment law to deviate further from federal law and national norms and bog down Oregon’s already burdened court system.