Oregon’s Workplace Fairness Act, in effect since October 1, 2020, limits when employers can use nondisclosure and non-disparagement clauses to silence workers who report discrimination, harassment, or sexual assault. It also requires every Oregon employer, regardless of size, to maintain a written anti-discrimination policy, and it gives workers five years to file a claim. Violations of the NDA rules carry civil penalties of up to $5,000 on top of any other damages a worker can recover.
What the Act Covers and Who It Protects
The law builds on ORS 659A.030, which prohibits employment discrimination based on race, color, religion, sex, sexual orientation, gender identity, national origin, marital status, or age (for workers 18 and older).1Oregon Public Law. Oregon Code ORS 659A.030 – Discrimination Because of Race, Color, Religion, Sex, Sexual Orientation, Gender Identity, National Origin, Marital Status, Age or Expunged Juvenile Record Prohibited Separate provisions extend protection to veterans and to workers with physical or mental disabilities.2Oregon Public Law. Oregon Code ORS 659A.112 – Employment Discrimination The Workplace Fairness Act’s NDA restrictions and policy requirements reach all of those protected classes, and they also reach conduct that constitutes sexual assault.
The protections are not limited to full-time salaried employees. Interns keep their civil rights protections against workplace discrimination even where their positions are exempt from wage and hour rules.3Oregon Bureau of Labor and Industries. Interns and Trainees An unpaid intern who is harassed at an Oregon workplace can file a discrimination complaint on the same terms as a paid employee.
Limits on Nondisclosure and Non-Disparagement Agreements
The central provision is ORS 659A.370. It is an unlawful employment practice for an employer to enter into any agreement with an employee or prospective employee that contains a nondisclosure or non-disparagement clause preventing the worker from discussing conduct that constitutes discrimination, harassment, or sexual assault.4Oregon State Legislature. Oregon Code 659A.370 – Employer Prohibited From Entering Into Agreements That Prevent Employee From Discussing Certain Unlawful Conduct The rule applies when the agreement is offered as a condition of employment, continued employment, promotion, compensation, or benefits.
Location does not save an employer. The prohibition covers misconduct that occurred in the workplace, at employer-coordinated off-site events, and between employers and employees away from the workplace entirely. An employer cannot use an NDA to bury harassment that happened at a work dinner, a conference hotel, or an after-hours event.
When Nondisclosure Is Still Allowed
An employee can voluntarily request that a settlement, separation, or severance agreement include nondisclosure or non-disparagement terms. The request has to come from the employee; the employer cannot suggest it, pressure the employee into asking, or condition the deal on the request being made. Any agreement reached this way must give the employee at least seven days after signing to revoke it, and it cannot take effect until that revocation window closes.4Oregon State Legislature. Oregon Code 659A.370 – Employer Prohibited From Entering Into Agreements That Prevent Employee From Discussing Certain Unlawful Conduct
A separate exception applies where the employer has made a good-faith determination that the employee was the person who engaged in the prohibited conduct. In that case, the NDA restrictions do not apply to the agreement with that individual.
What Happens When an Employer Violates the Rule
Two things happen. First, the offending nondisclosure or non-disparagement provision is void and unenforceable from the start, meaning the worker is free to speak regardless of what the paper says. Second, the worker can file a complaint with the Bureau of Labor and Industries or bring a civil action and recover a civil penalty of up to $5,000, plus compensatory and punitive damages.5Oregon Public Law. Oregon Code 659A.370 – Employer Prohibited From Entering Into Agreements That Prevent Employee From Discussing Certain Unlawful Conduct
The Written Policy Every Oregon Employer Must Have
Every Oregon employer must adopt a written policy laying out procedures for reducing and preventing discrimination, harassment, and sexual assault in the workplace.6Oregon Public Law. Oregon Code 659A.375 – Employer Policies Relating to Prevention of Discrimination and Sexual Assault There is no size threshold. A five-person business has the same obligation as a company with thousands of workers.
At a minimum, the policy must include:
- A process for employees to report prohibited conduct.
- The name of a specific individual designated to receive complaints, plus a designated alternate.
- A statement that employees have five years to file a legal claim for discrimination, harassment, or sexual assault.
- A description of the employee’s right to voluntarily request nondisclosure terms in a settlement, along with the seven-day revocation period.
- A statement that the employer cannot require or coerce a worker into signing a nondisclosure or non-disparagement agreement.
- Guidance that employers and employees should document any incidents of prohibited conduct.
The policy has to be available in the workplace, provided to every new hire, and handed to any employee who discloses information about discrimination or harassment to a person designated to receive complaints.6Oregon Public Law. Oregon Code 659A.375 – Employer Policies Relating to Prevention of Discrimination and Sexual Assault The trigger for that last requirement is disclosure, not a formal complaint. If an employee mentions harassment to a designated supervisor, that supervisor must give the employee a copy of the policy then and there.
Five Years to File a Claim
The Workplace Fairness Act extended Oregon’s statute of limitations for the categories of claims it covers. Under ORS 659A.875, civil actions alleging violations of ORS 659A.030 (discrimination based on protected class), ORS 659A.082 (veterans), ORS 659A.112 (disability), or ORS 659A.370 (illegal nondisclosure agreements) must be filed within five years of the alleged violation.7Oregon State Legislature. Oregon Revised Statutes 659A.875 – Time Limitations Before the Act, the general employment discrimination deadline in Oregon was one year, and many workers missed it without realizing it had passed.
Employment law violations outside these specific statutes still carry the one-year deadline. The five-year window is limited to the claims the Act targeted. Separately, once BOLI issues its 90-day notice on a filed complaint, the worker has 90 days from that notice to bring a civil action in court.8Oregon Public Law. Oregon Code ORS 659A.875 – Time Limitations
Retaliation Is Separately Prohibited
Under ORS 659A.199, an employer cannot fire, demote, suspend, or otherwise discriminate against an employee who in good faith reports information the employee believes is evidence of a violation of state or federal law.9Oregon Public Law. Oregon Code ORS 659A.199 – Prohibited Conduct by Employer A retaliation claim does not require proving the original complaint was correct. The worker only has to show a good-faith report and an adverse action tied to it. Timing matters. A demotion six weeks after a harassment report can itself support the inference of retaliation.
How to File a Complaint
A worker who believes an employer violated the Act or discriminated against them can file with the Oregon Bureau of Labor and Industries.10State of Oregon. BOLI – File a Complaint The process starts with an employment discrimination questionnaire, submitted online or by mail. An intake officer reviews it, contacts the worker to confirm details, and drafts a formal complaint for the worker to sign. Once signed and returned, BOLI opens the case and serves the employer, who then submits a position statement. Investigations must generally be completed within one year of filing. If the investigation finds substantial evidence, BOLI can pursue conciliation or, failing that, prosecute the case in an administrative hearing. If it finds insufficient evidence, the case is dismissed, but the worker can still file suit in civil court.
Filing at BOLI and the EEOC at the Same Time
BOLI and the federal Equal Employment Opportunity Commission share a worksharing agreement, so a single filing with either agency can be dual-filed with the other. The receiving agency drafts the charge in a format that satisfies both, and it must notify the worker and employer within 10 calendar days that the charge is dual-filed.11U.S. Equal Employment Opportunity Commission. EEOC/FEPA Model Worksharing Agreement Between Oregon Bureau of Labor and Industries and the U.S. Equal Employment Opportunity Commission This matters because federal Title VII claims have a much shorter deadline than Oregon’s five-year window. Filing only with BOLI, and letting the federal window close, forfeits the ability to bring federal claims later.
What a Worker Can Recover
Under ORS 659A.885, a court can award back pay for up to two years before the complaint was filed, compensatory damages (with a $200 minimum), and punitive damages. Oregon does not cap noneconomic damages in employment discrimination cases; the Oregon Supreme Court has confirmed that the personal injury noneconomic damages cap does not apply here. Employers who engage in a pattern or practice of discrimination face additional penalties of up to $50,000 for a first violation and up to $100,000 for any subsequent violation, on top of other damages.12Oregon Public Law. Oregon Code ORS 659A.885 – Civil Action
By comparison, federal Title VII claims carry combined compensatory and punitive caps tied to employer size:13U.S. Equal Employment Opportunity Commission. Remedies for Employment Discrimination
- 15 to 100 employees: $50,000
- 101 to 200 employees: $100,000
- 201 to 500 employees: $200,000
- More than 500 employees: $300,000
For serious harassment cases involving substantial emotional harm, the federal caps often fall short of the actual loss. Oregon’s uncapped state framework lets a jury award what it finds the harm to be worth.
Extra Rules for Severance Agreements With Workers Over 40
When a severance or separation agreement involves a worker over 40, the federal Older Workers Benefit Protection Act adds requirements on top of Oregon’s rules. An individual employee over 40 must be given at least 21 days to review any agreement waiving age-discrimination claims, and 45 days in a group termination. Federal law then provides a separate seven-day revocation period after signing, which runs independently of the seven-day revocation period under ORS 659A.370. Employers handling these agreements in Oregon have to satisfy both frameworks, and where they overlap the more protective provision controls.