dissenting.
A jury could find that defendants, on learning that plaintiff is HIV positive and that at least one customer was aware of her condition, decided to induce her to resign as an employee of defendant Denny’s. It could also find that, in order to achieve that result, they told her that customers objected to her presence because of her disability and that her continued employment would destroy the business, implicitly informed her that she would have to deal with customer reactions on her own, and concluded by saying that, while they could not fire her, they would leave it up to her to decide what to do. The majority holds that no jury could find that those actions discriminated against plaintiff, because of her disability, in the terms and conditions of her employment. I cannot join an opinion that so flagrantly ignores reality. I therefore dissent.1
The beginning of the problem with the majority opinion is its failure to consider all of the relevant facts.2 According to plaintiff, when she told defendant Hibbard about her HIV status, his face took on a new expression and *69his demeanor changed. He appeared startled and was thereafter much more aloof and unfriendly than he had previously been. When Hibbard told his superior, defendant Jacobs, about defendant’s condition, Jacobs did not know how to handle the problem. He later told plaintiff that he had talked with his boss, who told him to “take care of’ the situation.3
After his conversation with Hibbard, Jacobs learned from his brother, another Denny’s employee, that a customer was aware of plaintiffs status and would not return to the restaurant while she worked there. Jacobs then asked Hibbard to pass that information on to plaintiff and to find out what she had to say about it. Hibbard called plaintiff into his office, told her of the customer complaint, told her that the customer intended to inform others of plaintiffs condition, told her that the situation would either harm or destroy the business, and, after saying that he could not fire her, said that he would leave it up to her what to do.
It is hard to conceive how defendants could have played more effectively on plaintiff’s desire for privacy, her fear of public reaction to her condition, her sense of responsibility toward her employer, and her guilt over any harm her condition might cause it. That is, it is hard to conceive how defendants could have made better use of plaintiffs disability in an effort to get rid of her without directly firing her. In any event, that effort succeeded.
At the start of the conversation, plaintiff thought that Hibbard was going to fire her and that he had a right to do so. Even after he told her that he could not fire her, she felt backed into a comer and did not know what to do. She believed that she would be subject to humiliation and abuse because of her HIV status if she continued to work at Denny’s. As one would expect, she had been shocked and dismayed when, several years earlier, she learned that she was infected with HIV. She originally told Hibbard about her condition privately because she did not want other employees to learn about it. Now Hibbard told her that that condition *70would become public knowledge, that it would cause great harm to Denny’s, that defendants intended to place the entire burden of responding to the problem on her shoulders, and, by implication, that defendants intended to do nothing to help her prepare or make that response.
ORS 659.425(1) prohibits defendants from discriminating against plaintiff “in terms, conditions or privileges of employment” because of her physical or mental impairment. The majority holds that defendants did not discriminate because there is no contention that Hibbard “subjected her to ridicule or verbal abuse during the conversation” and because defendants “did not fire plaintiff, change her work hours, pay her less money or deprive her of a benefit or privilege that other employees had * * Even though the jury could infer that defendants hoped that Hibbard’s statements would induce plaintiff to resign, they “did nothing that violated the statute.” 146 Or App at 65-66. The majority takes a remarkably obtuse view of both the statutory requirements and the situation in which defendants placed plaintiff.
Hibbard, plaintiffs supervisor, initiated the meeting with plaintiff in order to discuss customer reaction to her HIV status, which is a disability, and the effect of that reaction on the business. The meeting thus was not a “private conversation,” 146 Or App at 66, but an official part of plaintiffs employment and plaintiff participated in it because her supervisor required her to do so. The meeting was a term or condition of her employment.
Hibbard made a subject that he could not legally use to evaluate plaintiffs work performance the focus of the meeting. Under OAR 839-06-250,4 customer reaction to plaintiffs disability is not something that defendants could consider in determining whether she could perform the work involved in her job. However, all that Hibbard talked about' was customer reaction, the damage that it would do to the business, and whether plaintiff would take any steps to alleviate that harm.
*71Hibbard did not suggest that defendants intended to do anything to help plaintiff deal with problems arising from her HIV status. Rather, he placed the entire burden on her, the person with the disability, and did not indicate that she would have any support from the business in facing customers if she did not resign. A jury could find that the purpose of the entire conversation was to induce plaintiffs resignation and that defendants, thus, discriminated against her by using a term or condition of her employment — a meeting with her supervisor — to force her out for reasons that ORS 659.425(1) forbids.5
Simply asking plaintiff what she intended to do suggested, first, that there was something about her HIV status that required someone to do something and, second, that plaintiff, not defendants, was the one who had to do it. Hibbard went beyond informing plaintiff of the complaint; he told her that the complaint required action and that it was up to her to take that action, because defendants would not. Under this pressure, plaintiff took the action that defendants wanted her to take, that they tried to get her to take, and that they could not legally have taken themselves. They thereby achieved indirectly what they could not have done directly— to get rid of plaintiff. That Hibbard did not abuse her or reduce her pay is irrelevant. Defendants let plaintiff know that they would throw her to the wolves. She did not have to wait to see how hard the wolves bit in order to have a discrimination claim.
Defendants had an established, nondiscriminatory approach available to deal with this situation. The law concerning reasonable accommodation to a disability provides that approach by analogy.6 ORS 659.425(l)(a) requires an employer to make a reasonable accommodation to an employee’s disability if doing so will enable the employee to perform *72the work involved. Federal law under the Americans with Disabilities Act, which creates obligations similar to those under ORS 659.425, has developed that duty in a way that focusses on practical problem solving. That law emphasizes that the employer and employee should engage, in good faith, in an interactive process to find a reasonable accommodation to the employee’s disability. The employer should initiate the process, but when the process breaks down the party responsible for the breakdown is likely to lose a discrimination action. See 29 CFR § 1630.2(o)(3); Beck v. University of Wisconsin Bd. of Regents, 75 F3d 1130 (7th Cir 1996); see also Bultemeyer v. Fort Wayne Community Schools, 100 F3d 1281 (7th Cir 1996) (employer has obligation to sit down with employee and work toward a reasonable accommodation). The goal is for the employer to use the law as a foundation for creating productive employees rather than seeking some technical escape from the law’s obligations. Defendants made no effort to begin such a process; Hibbard’s goal in meeting with plaintiff was not to seek a solution but to get rid of her. The majority’s endorsement of defendants’ technical defense is both incorrect and ignores the purpose of the law’s protection for people with disabilities.
Finally, I dissent from the majority’s affirmance of the trial court’s order denying discovery of a letter that Jacobs wrote, under instructions from one of Denny’s attorneys, as part of Denny’s informal investigation of this matter. I will not go into detail but will simply comment that the trial court incorrectly decided that there was no potential waiver of the work-product doctrine and therefore failed to exercise its discretion to determine whether to compel production. The majority is thus incorrect in affirming the decision on the ground that it was within the trial court’s discretion and in ignoring the effect of OEC 612 and ORCP 39 D on its decision. Federal courts discussing this issue give considerable attention to the federal counterpart of those rules. I would remand for the trial court to exercise its discretion under the correct standard. See In Re Atlantic Financial Mgmt. Securities Lit., 121 FRD 141, 143 (D Mass 1988); Laxalt v. McClatchy, 116 FRD 438, 454 (D Nev 1987); Wheeling-Pittsburgh Steel v. Underwriters Labs., 81 FRD 8, 10 (ND Ill 1978); Berkey Photo, Inc. v. Eastman Kodak Co., 74 FRD 613, 617 (SDNY 1977).
*73I dissent.
Riggs and Armstrong, JJ., join in this dissent.I concur with the majority’s conclusion that plaintiff has not established the elements of a wrongful discharge, primarily because she has not shown that her working conditions had become objectively intolerable at the time that she resigned. See McGanty v. Staudenraus, 321 Or 532, 557, 901 P2d 841 (1995). I find it curious, however, that the majority relies on Bratcher v. Sky Chefs, Inc., 308 Or 501, 783 P2d 4 (1989), and a case that we decided under Bratcher, in discussing the issue, because McGanty partially overruled Bratcher, 321 Or at 555. Although the parties were not aware of McGanty until after oral argument, we certainly are aware of it now.
I state the facts, including all reasonable inferences from the evidence that the parties submitted, most favorably to plaintiff. Stoeger v. Burlington Northern Railroad Co., 323 Or 569, 572, 919 P2d 39 (1996).
Hibbard testified that he told Jacobs that plaintiff had offered to resign if her condition was a problem. The majority fails to note that plaintiff denies making that statement to Hibbard and that on summary judgment we must treat plaintiff s denial as true.
OAR 839-06-250 provides:
“The attitude or preference of employers, managers, supervisors, co-workers, customers, clients, or the general public toward the person’s perceived or actual impairment may not be considered by the employer in evaluating the person’s ability to perform the work involved.”
This conclusion would be obvious if plaintiff were African-American and if customers objected to her presence on that ground. A meeting in which her employer attempted to induce her to resign by telling her that the reaction might destroy the business would clearly discriminate against her on the ground of race in violation of ORS 659.030(1)(b). There is no fundamental difference between that situation and plaintiffs actual claim of discrimination in violation of ORS 659.425(1) based on her HIV status.
Because plaintiff was physically able to perform the work involved, the employer’s obligation to make a reasonable accommodation does not apply directly. ORS 659.425(1)(a).