By Paula A. Barran
Barran Liebman 
Oregon Law Firm
On November 27, 2012 the Oregon Supreme Court issued its opinion in a long-standing dispute between Portland State University and the PSU Chapter of the American Association of University Professors (the exclusive representative of a bargaining unit of academic professionals). The Court disapproved of a provision in the bargaining agreement that allowed the university to end a grievance if the complaining employee also brought the same complaint outside the university. In this case, the complaining employee filed a grievance through her union, but also brought companion discrimination claims against the university through the Bureau of Labor and Industries and by initiating contact with the Equal Employment Opportunity Commission. Those “outside” filings brought the grievance procedure to an end.
The court saw the provision and these events as retaliatory. Oregon’s law is intended to ensure that employees are not discouraged from protected conduct (such as filing a discrimination complaint) by the threat of adverse treatment (such as being denied the right to grieve a contract violation). Federal law is the same since “a benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all” (citing Hishon v. King & Spalding, a 1984 U.S. Supreme Court decision). So, any contract language or employment policy that targets employees who have filed complaints with regulatory agencies and denies them an important right that is guaranteed to other employees, is invalid. In this case, the university used a provision in the bargaining agreement in a way that denied the employee the benefit of having her union pursue her contract claim, simply because she also filed an outside discrimination complaint.
Employers should look at these principles carefully and take to heart two key messages. First, just because you have a discretionary right to do something under a bargaining agreement or policy does not mean that you can use that discretion freely. If you exercise your discretion in a way that is adverse to an employee because of a protected status, you may be engaging in retaliation. Second, delete any contract or policy provisions that resemble the one in this bargaining agreement. What should you look for? Anything that says you don’t have to follow your normal practices or procedures if an employee files an agency complaint or lawsuit. That might be a grievance procedure like the one in this contract, or it might take the form of an open door or complaint policy in your handbook.
The case is Portland State University Chapter of the American Association of University Professors v. Portland State University.