Or. Admin. Code § 291-006-0060

Current through Register Vol. 63, No. 11, November 1, 2024

Section 291-006-0060 - [Effective until 1/27/2025] Discrimination Complaint and Appeal Submission Requirements

(1) An AIC who believes they have been subjected to unlawful discrimination by the department or by an employee, contractor, or volunteer of the Department of Corrections or Oregon Corrections Enterprises on the basis of race, color, national origin, religion, gender, sex, sexual orientation, marital status, age, disability, or familial status may seek resolution of their complaint or issue through the department's internal discrimination complaint process by completing the department's approved discrimination complaint form and submitting it to the designated discrimination complaint coordinator.

(a) Instructions for filing a discrimination complaint are found on the reverse side of the AIC discrimination complaint form, or the AIC may contact the discrimination complaint coordinator or the law library.

(b) Functional unit managers or designees shall ensure the approved AIC discrimination complaint forms are available to AICs in DOC correctional facilities.

(2) An AIC must use their DOC court name when submitting a discrimination complaint, which must be entered in the designated "Name" portion of the form. A secondary name an AIC is known by may also be listed underneath their court name on the form by adding "AKA" (or "also known as") before the additional name.

(3) Discrimination complaints must be legible and written within the appropriate space provided. A discrimination complaint may be up to three pages (single-sided) in length. An AIC must use a discrimination complaint form for each page of the discrimination complaint. Discrimination complaints that are not legible or contain multiple sentences per line will be returned to the AIC for correction.

(4) A discrimination complaint must include a complete description of the incident, action, or application of rule that directly impacted the submitting AIC and how the AIC believes it has subjected them to discrimination on the basis of race, color, national origin, religion, gender, sex, sexual orientation, marital status, age, disability, or familial status.

(5) An AIC may submit supporting documentation only if it directly relates to the discrimination complaint. An AIC may submit no more than five pages (single-sided) of supporting documentation per discrimination complaint or appeal. Communication forms seeking a response should not be attached to a discrimination complaint and should be submitted separately.

(6) An AIC may submit only their signature on discrimination complaint or appeal forms and all pages of the discrimination complaint or appeal must be signed and dated.

(7) If an AIC cannot complete the discrimination complaint form due to physical or mental impairments or language barriers, the AIC may contact the legal library for assistance. An AIC may also contact the discrimination complaint coordinator or institution ADA coordinator to request assistance.

(8) An AIC may not write a discrimination complaint for another AIC unless authorized by the discrimination complaint coordinator or institution ADA coordinator. However, the AIC submitting the complaint form must still sign the form.

(9) Discrimination complaints and appeal forms with foreign substances or potential biological hazards on them will not be processed. They will be disposed of in accordance with the institution's procedure on biological hazards. If the AICs name and SID is known the institution discrimination complaint coordinator will notify the AIC of the actions taken

(10) Discrimination complaints and appeal forms containing sexually explicit, derogatory, or offensive artwork, drawings, or other sexually explicit material will be returned to the AIC for correction.

(11) An AIC may not file more than one accepted discrimination complaint regarding a single incident.

(12) Discrimination complaint forms and discrimination complaint appeal forms containing hostile, sexual, abusive or threatening language or gestures towards or about another person will be returned to the AIC for correction.

(13) An AIC may file a discrimination complaint on the same issue as raised in a previously filed complaint provided there is another incident and new information is available about the issue, which would result in a different response than has already been provided, at the discretion of the discrimination complaint coordinator.

(14) An AIC cannot file a discrimination complaint regarding the following:

(a) Actions or decisions outside the jurisdiction of the department (for example, actions by the Board of Parole and Post-Prison Supervision);

(b) Any matter that may be reviewed through a separate review process under the Department's rules. Examples include, but are not limited to, the review processes set out in the following Department rules:

(A) Segregation (Administrative) - (OAR 291-046)

(B) Alternative Incarceration Programs - (OAR 291-062)

(C) Classification - (OAR 291-104)

(D) Cost of Care Reimbursement - (OAR 291-203)

(E) Grievance Review System - (OAR 291-109)

(F) Informed Consent to Treatment with Psychotropic Medication - (OAR 291-064)

(G) Mail - (OAR 291-131)

(H) Prison Term Modification - (OAR 291-097)

(I) Security Threat Management - (OAR 291-069)

(J) Trust Accounts - (OAR 291-158)

(K) Visiting - (OAR 291-127)

(c) Conduct orders, investigations leading to a conduct order, or any conduct order sanction, except where a pattern of bias can be articulated;

(d) Misconduct reports, investigations leading to or arising from misconduct reports, or disciplinary hearings, findings, and sanctions, except where a pattern of bias can be articulated;

(e) Any matter that does not directly and personally affect the AIC.

(f) Any matters in which the AIC lacks personal knowledge of the incident or issue;

(g) Claims or issues the AIC has pursued or is pursuing in pending litigation in state or federal courts.

(h) The processing of or response to discrimination complaints, discrimination complaint appeals, grievances, grievance appeals or other separate review processes.

(15) A discrimination complaint related to a claim of sexual harassment or sexual abuse will be immediately subject to investigation that is outside the Department's administrative remedies process.

(16) For purposes of this rule, the term "sexual harassment" is defined in OAR 291-109-0110(19), and the phrase "related to a claim of sexual harassment or sexual abuse" includes claims of sexual abuse, fear of sexual abuse, or allegations of mishandling of an incident or investigation of sexual abuse such as retaliation for reporting or retaliation for cooperating with a sexual abuse investigation.

(17) For purposes of this rule, "sexual abuse" is defined as sexual abuse of an AIC by another AIC and sexual abuse of an AIC by a staff member.

(a) The term "sexual abuse" includes any of the following acts, if the victim does not consent, is coerced into such act by overt or implied threats of violence, or is unable to consent or refuse.

(A) Contact between the penis and the vulva or the penis and the anus, including penetration, however slight;

(B) Contact between the mouth and the penis, vulva, or anus;

(C) Penetration of the anal or genital opening of another person, however slight, by a hand, finger, object or other instrument; and

(D) Any other intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or the buttocks of another person, excluding contact incidental to a physical altercation.

(b) Sexual abuse of an AIC by a DOC or OCE employee, contractor or volunteer of the department or OCE includes any of the following acts, with or without consent of the AIC, detainee, or resident:

(A) Contact between the penis and the vulva or the penis and the anus, including penetration, however slight;

(B) Contact between the mouth and the penis, vulva, or anus;

(C) Contact between the mouth and any body part where a DOC or OCE employee, contractor, or volunteer of the department or OCE has the intent to abuse or arouse.

(D) Penetration of the anal or genital opening, however slight, by a hand, finger, object, or other instrument, that is unrelated to official duties or where a DOC or OCE employee, contractor, or volunteer of the department or OCE has the intent to abuse, arouse, or gratify sexual desire;

(E) Any other intentional contact, either directly or through the clothing, of or with the genitalia, anus, groin, breast, inner thigh, or the buttocks that is unrelated to the official duties or where a DOC or OCE employee, contractor, or volunteer of the department or OCE has the intent to abuse, arouse or gratify sexual desire;

(F) Any attempt, threat, or request by a DOC or OCE employee, contractor, or volunteer of the department or OCE to engage in the activities descried by paragraphs (A) - (E) of this section;

(G) Any display by a DOC or OCE employee, contractor, or volunteer of the department or OCE of his or her uncovered genitalia, buttocks, or breast in the presence of an AIC, detainee, or resident, and

(H) Voyeurism by a DOC or OCE employee, contactor, or volunteer of the department or OCE. Voyeurism by a staff member, contractor or volunteer means an invasion of privacy of an AIC by staff for reasons unrelated to official duties, such as peering at an AIC who is using a toilet in his or her cell to perform bodily functions; requiring an AIC to expose his or her buttocks, genitals, or breasts; or taking images of all or part of an AIC's naked body or of an AIC performing bodily functions.

(18) A discrimination complaint related to a claim of sexual harassment or sexual abuse will not be considered or counted as a "grievance" or "discrimination complaint" under the department's rules on Grievance Review System (OAR 291-109) or Discrimination Complaint Review System (OAR 291-006).

Or. Admin. Code § 291-006-0060

DOC 15-2019, adopt filed 10/18/2019, effective 10/18/2019; DOC 16-2024, temporary amend filed 07/18/2024, effective 8/1/2024 through 1/27/2025

Statutory/Other Authority: ORS 179.040, 179.321, 423.020, 423.030 & 423.075

Statutes/Other Implemented: ORS 179.040, 179.321, 423.020, 423.030 & 423.075