concurring.
I concur in the result notwithstanding considerable doubt as to the correctness of the majority opinion.
ORS Chapter 659 defines a number of unlawful employment practices and creates various causes of action in favor of employees whose rights have been violated. Women discharged because they are pregnant have a claim under ORS 659.029 and 659.030. ORS 659.030(1) (a) makes it an unlawful employment practice for an employer to discharge an individual because of the individual’s sex. ORS 659.029 defines the phrase “because of sex” to include “because of pregnancy,” and also states that pregnant women “shall be treated the same for all employment-related purposes * * * as other persons not so affected * * ORS 659.121(1) permits a civil suit to recover back pay, injunctive relief, and attorney fees. The plaintiff has a remedy under these statutes.
It is less clear whether she has a claim under ORS 659.400 and 659.425. Neither statute defines the meaning of “a physical or mental impairment.” The act appears to be directed at more-or-less permanent conditions that “substantially [limit] one or more major life activities.” ORS 659.400(2). Pregnancy may not be such an impairment.
I fear that the majority’s construction may expand liability beyond the legislative intent. Under the majority opinion, the rights under ORS 659.425(1) (c) have few limits. We have effectively recognized a cause of action against an employer who discharges a left-handed person because the employer perceives that left-handedness is a substantial limitation on a major life activity, even though left-handedness is not such a limitation.
I have more than a little disquiet with the majority result, but because my uncertainty hovers at about the 49 percent level, I nonetheless join in the result.
Gillette, J., joins in this concurring opinion.