New Harassment and Discrimination Policy Requirement for Public Contractors
The Oregon Legislature passed HB 3060, requiring most public contractors to maintain specific policies and practices relating to sexual harassment, sexual assault, and discrimination against employees who are members of a protected class. The law takes effect on January 1, 2018. The following provides a brief overview of HB 3060’s requirements. The bottom line is that public contractors will want to review their anti-harassment policies and ensure they comply and will want to ensure they insert certifications of compliance into their contracts.
Which contracts are subject to the statute?
HB 3060 applies to public contracts with state contracting agencies if the anticipated contract price is greater than or equal to $150,000. If a state contracting agency advertises or solicits for procurement of a public contract, HB 3060 applies to all public contracts advertised or solicited on or after January 1, 2018. Otherwise, HB 3060 applies to all public contracts entered into on or after January 1, 2018.
What must contractors do to comply?
Prospective contractors generally must certify in a signed writing that they are in compliance with specific policy, practice, and procedure requirements detailed below. All public contracts subject to the statute must contain a material term requiring the contractor to certify compliance with the policy, practice, and procedure requirements and to maintain compliance during the full term of the contract.
What behaviors must the policies, practices, and procedures address?
The statute targets conduct that constitutes discrimination against members of a protected class, sexual harassment, or sexual assault—“prohibited conduct.”
- Discrimination is broadly defined, including any conduct creating intimidating, hostile, or offensive employment conditions or employment conditions demonstrating animosity, anger, or resentment, based on membership in a protected class.
- Protected class includes any group of people protected from employment discrimination under state or federal law, such as identification with the following characteristics: race, color, ethnicity, national origin, sex, gender and gender identity, sexual orientation, disability, age, marital status, and religion. Protected-class status also arises from the employee’s association or identification with members of a protected class.
- Sexual assault means unwanted sexual contact, as defined in criminal statutes.
- Sexual harassment includes both quid pro quo sexual harassment and unwelcome conduct of a sexual nature that interferes with an employee’s performance of job duties or creates a hostile work environment.
What policies, practices, and procedures does the statute require?
- A written notice to all employees, clearly prohibiting and specifying disciplinary measures for prohibited conduct. Contractors may provide this notice in an employee handbook.
- A clear process for reporting and responding to incidents of prohibited conduct, which must:
- Enable an employee to report and stop prohibited conduct that the employee is a victim of or witness to;
- Guide the prospective contractor in:
- responding to a report of prohibited conduct,
- resolving the issues identified in the report, and
- disciplining employees engaging in prohibited conduct.
- A written procedure that:
- Establishes the procedure for submitting reports of prohibited conduct;
- Identifies the persons responsible for receiving reports of prohibited conduct; and
- Identifies the persons responsible for responding to reports of prohibited conduct.
- A practice of keeping reports of prohibited conduct confidential to the extent allowed by law.
- A prohibition on retaliation against employees for making reports of prohibited conduct.
- A prohibition on discrimination in the provision of benefits to employees or dependents of employees based on the protected-class status of the employee or dependent.
- If the contractor provides healthcare benefits, a prohibition on denying benefits to employees or dependents of employees based on the gender identity of the employee or dependent.
What Are the Consequences of a Failure to Comply?
The Oregon statute is silent on the consequences of failing to comply. However, if a contractor failed to have a compliant policy, it would be a breach of the public contract. What damages might flow from that breach are unknown, but at this time our best guess is that damages would not include compensatory or punitive damages or attorneys’ fees. Rule-making has not yet occurred, which could provide clarification on this issue.