In its May 31, 2018, decision in McLaughlin v. Wilson, 292 Or App 101 (2018), the Oregon Court of Appeals expanded liability for employment retaliation in two ways. The court held that (1) individuals, not just employers, can be primarily liable for retaliation under Oregon law; and (2) retaliation includes post-employment retaliation like the dissemination of negative references.
McLaughlin worked as a medical assistant at Hope Orthopedics in Salem, where she assisted Wilson in performing orthopedic surgeries. Their working relationship began well, and Wilson even wrote a glowing reference in support of McLaughlin's admission to a graduate degree program at Willamette University. After a few months, however, Wilson began to harass McLaughlin sexually, prompting her to complain to Hope. Hope investigated the charges, prompting Wilson to resign from Hope. In the meantime, McLaughlin was accepted into the Willamette program and resigned from Hope as well. Wilson then visited an administrator at Willamette and made disparaging remarks about McLaughlin, accusing her of routinely making false claims that ruined people's careers in order to get financial settlements. McLaughlin sued Wilson for employment retaliation, but the trial court granted Wilson's motion to dismiss.
The Court of Appeals did an elaborate statutory analysis to answer a question of first impression: Whether Oregon's anti-retaliation provision, ORS 659A.030(1)(f), covers employees directly. Since Wilson's conduct occurred after he left Hope's employ and he thus could not be liable as an aider and abettor of his former employer, Wilson could be liable only if the anti-retaliation provision makes co-workers liable directly. The Court of Appeals held that it does, because unlike the anti-discrimination terms in the statute, which apply only to employers, labor organizations, and employment agencies, the anti-retaliation term applies to "any person."
Wilson cited to extensive legislative history to argue that the use of the language "any person" was simply a housekeeping measure that was not intended to expand liability beyond employers, labor organizations, and employment agencies. The court found that the legislative history was insufficient to overcome the plain statutory language. Thus, Oregon retaliation law now differs from Title VII, because, under federal law, only employers can be liable for retaliation. See Miller v. Maxwell's Intern. Inc., 991 F.2d 583, 587 (9th Cir.1993), cert. denied, 510 U.S. 1109 (1994) (holding it inconceivable that Congress intended to impose liability on individuals when liability for employers under Title VII is limited to employers with 15 or more employees). That difference is a matter of statutory language, however, because Title VII's retaliation provision applies only to "any employer," not to "any person."
More important for employers, the Court of Appeals also held that Wilson's post-employment conduct constituted retaliation. This arguably makes Oregon law consistent with U.S. Supreme Court retaliation precedent, where the Court has placed a low hurdle on what constitutes retaliation as any conduct that inhibits unfettered access to statutory remedial mechanisms. Burlington N. & S. F. R. Co. v. White, 548 U.S. 53, 61-64 (2006). That this would include providing negative employment references is not particularly surprising. The McLaughlin decision extends the reasoning to non-employment references, since the plaintiff quit working to pursue a graduate degree. Oregon's anti-retaliation proscriptions now apply not merely to existing employment relationships and future employment relationships but also to non-employment relationships. The court was careful to limit its holding at the end of the opinion, noting that Wilson's conduct occurred so soon after plaintiff's complaint against him that it is not difficult to see how that conduct could deter a person from exercising her statutory right to complain about discrimination. The court refused to define the outer boundaries of what post-employment conduct might amount to retaliation. We look forward to how the law will be further refined.
