May 2, 2003
No. 2003-2

OREGON AND WASHINGTON DISCRIMINATION LAWS STILL APPLY TO SMALL EMPLOYERS

Small employers should not become complacent about recent media coverage of the U.S.  Supreme Court's decision in Clackamas Gastroenterology Associates v. Deborah Wells. State employment discrimination laws in both Oregon and Washington cover employers small enough to be exempt under such federal laws as the Americans with Disability Act or ADA, which was at issue in the Clackamas case.

In the Clackamas case, the Supreme Court decided that shareholder-employees in a professional medical practice should not be counted as employees for purposes of satisfying the 20-employee minimum for coverage under the federal ADA. The court ruled that a shareholder is not counted as an employee when he or she "owns and manages the enterprise." The court explained that the person is an "employer" and not an employee when he or she "can hire and fire employees, can assign tasks to employees and supervise their performance, and can decide how the profits and losses of the business are to be distributed."

Lower federal courts have applied similar rules in determining that certain owner-employees are not to be counted for meeting the 15-employee minimum for coverage under federal Title VII law. Title VII of the 1964 Civil Rights Act bars discrimination in employment on account of race, religion, color, sex or national origin.

In Oregon, an employer is covered by the state disability discrimination law when it employs six or more individuals. All Oregon employers, regardless of size, are covered by state employment discrimination laws prohibiting employment discrimination on account of race, religion, color, sex, national origin, marital status or age.

Under the Washington Law Against Discrimination, an employer with eight or more employees is prohibited from discriminating in employment on account of age, sex, marital status, race, creed, color, national origin or disability. The Washington law also protects independent contractors as well as employees.

Please call if you have any coverage questions.

Jeff Chicoine jchicoine@nsslaw.com 
Wayne Landsverk wlandsverk@nsslaw.com 
Verne Newcomb newcomb@nsslaw.com 
Jack Schwartz schwartz@nsslaw.com 
Rick S. Pope rpope@nsslaw.com 
Brian Thompson bthompson@nsslaw.com
Thomas Bahrman tbahrman@nsslaw.com

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