An adult entertainment club hired a 15-year-old victim of child sex trafficking as a nude dancer. The Bureau of Labor and Industries (BOLI) entered an order holding the club and three of its owners liable for subjecting her to sex discrimination in violation of ORS 659A.030(1)(b).

BOLI awarded $1 million in damages against the club, and also jointly and severally against the owners for aiding and abetting the unlawful sexual harassment.

The club is liable for $1 million.

The Oregon Court of Appeals upheld the award against the club, applying the following statute:

“An employer is liable for sexual harassment by nonemployees in the workplace when the employer or the employer’s agents knew or should have known of the conduct unless the employer took immediate and appropriate corrective action. In reviewing such cases the division will consider the extent of the employer’s control and any legal responsibility the employer may have with respect to the conduct of such non-employees.”

The owners are off the hook — for now.

However, the court concluded that BOLI erred in holding the owners liable for aiding and abetting. The relevant statute provides that it is unlawful "to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter." However, BOLI applied different language that it took from a previous agency decision: “to help, assist, or facilitate the commission of an unlawful employment practice.”

The court found this error to be "fundamental" — applying the meaning of three terms (help, assist, and facilitate) that are not even in the statute. So that part of the case was remanded.

For all the gory details: Frehoo, Inc. v. BOLI (Oregon Ct App 05/18/2022) [PDF].