explaining that to prevail on “a claim under ORS 659A.142(4), [a] plaintiff must . . . show that he was a ‘customer or patron’ who was subjected to ‘any distinction, discrimination or restriction’ by [the] defendant or its agents because he ‘is an individual with a disability’”
How later courts described this case
- explaining that to prevail on “a claim under ORS 659A.142(4), [a] plaintiff must . . . show that he was a ‘customer or patron’ who was subjected to ‘any distinction, discrimination or restriction’ by [the] defendant or its agents because he ‘is an individual with a disability’”
- stating that a plaintiff asserting a claim under ORS § 659A.142(4) must “show that he was . . . subjected to ‘any distinction, discrimination or restriction’ by [the] defendant or its agents because he ‘is an individual with a disability’”
- holding that the OPAA covers medical services provided by a county jail because it is not “selective in the way that a club or other distinctly private organization is”
- holding that, by providing healthcare services to residents of a county jail, the private contractor was offering those services to the public
Written by the judges who cited it.
The opinion
735
Argued and submitted November 3, 2021, resubmitted January 25; certified
question answered June 3, 2022
Andrew ABRAHAM,
on behalf of himself,
and for all others similarly situated,
Plaintiff-Appellant,
v.
CORIZON HEALTH, INC.,
fka Prison Health Services, Inc.,
Defendant-Appellee.
(United States Court of Appeals for the Ninth Circuit
No. 19-36077) (SC S068265)
511 P3d 1083
Plaintiff, a deaf individual with diabetes who was held in the Clackamas
County Jail, alleged that defendant, a private company providing medical ser-
vices at the jail, unlawfully placed him on suicide watch and denied him meals
and access to insulin in violation of Oregon law when it failed to use an American
Sign Language interpreter to communicate with plaintiff. Plaintiff sued defen-
dant in federal district court under ORS 659A.142(4), which prohibits disability
discrimination by places of “public accommodation.” The district court dismissed
plaintiff’s claim, concluding that defendant was not a place of public accommoda-
tion as defined by ORS 659A.400. Plaintiff appealed to the Ninth Circuit, which
certified to the Oregon Supreme Court the following question: “Is a private con-
tractor providing healthcare services at a county jail a ‘place of public accommo-
dation’ within the meaning of Oregon Revised Statutes § 659A.400 and subject
to liability under § 659A.142?” Held: (1) Plaintiff was a “customer” or “patron”
of defendant within the meaning of ORS 659A.142; (2) a private contractor pro-
viding healthcare services at a county jail is a “place of public accommodation”
within the meaning of ORS 659A.400(1) and can be subject to liability under
ORS 659A.142; (3) a private contractor providing healthcare services at a county
jail does not qualify for the exclusion of a “local correction facility” from the defi-
nition of public accommodation found in ORS 659A.400(2)(d).
The certified question is answered.
On certified question from the United States Court of
Appeals for the Ninth Circuit; certification order dated
January 28, 2021; certification accepted March 4, 2021.
Carl Post, Law Offices of Daniel Snyder, Portland, argued
the cause and filed the brief for plaintiff-appellant. Also on
the brief was John Burgess.
736 Abraham v. Corizon Health, Inc.
Sara Kobak, Schwabe, Williamson & Wyatt, PC, Portland,
argued the cause and filed the brief for defendant-appellee.
Also on the brief was Anne M. Talcott.
Shenoa Payne, Shenoa Payne Attorney at Law PC,
Portland, filed the brief for amicus curiae Oregon Trial
Lawyers Association.
Daniel Greenfield, Kathrina Szymborski, and Brad
Sukerman, Roderick and Solange MacArthur Justice
Center, Chicago, Illinois, and Washington, D.C., and Aliza B.
Kaplan, Criminal Justice Reform Clinic, Lewis & Clark Law
School, Portland, filed the brief for amici curiae Disability
Rights Oregon, Lewis & Clark Law School’s Criminal
Justice Reform Clinic, and American Civil Liberties Union
of Oregon.
Before Walters, Chief Justice, and Balmer, Flynn, Duncan,
Nelson, Garrett, and DeHoog, Justices.*
WALTERS, C. J.
The certified question is answered.
Garrett, J., dissented and filed an opinion, in which
Balmer, J., joined.
______________
* Nakamoto, J., retired December 31, 2021, and did not participate in the
decision of this case.
Cite as 369 Or 735 (2022) 737
WALTERS, C. J.
In this opinion, we answer a question that has been
certified to us by the United States Court of Appeals for the
Ninth Circuit, concerning the applicability of Oregon’s anti-
discrimination laws to a private contractor that provides
healthcare services within a jail. Plaintiff filed a lawsuit
against defendant, a private entity that contracted with the
Clackamas County Jail to provide healthcare services to
incarcerated persons, alleging that defendant had discrim-
inated against him on the basis of disability, in violation of
ORS 659A.142(4), which prohibits disability discrimination
by places of public accommodation. The district court held
that defendant was not a place of public accommodation, as
defined by ORS 659A.400. The Ninth Circuit asked us to
help it to resolve plaintiff’s appeal of the dismissal of his
state law claim and certified to us the following question:
“Is a private contractor providing healthcare services at
a county jail a ‘place of public accommodation’ within the
meaning of Oregon Revised Statutes § 659A.400 and sub-
ject to liability under § 659A.142?”
As we explain below, the answer to that question is yes.
BACKGROUND
We take the following summary of the factual back-
ground and procedural posture of the case from the Ninth
Circuit’s certification order and from the record. Because
the question certified to us arises from the appeal of the
dismissal of plaintiff’s complaint, we, like the Ninth Circuit,
assume that the facts alleged in the complaint are true. See
Abraham v. Corizon Health, Inc., 985 F3d 1198, 1199-200
(9th Cir 2021) (“Because the district court decided this case
on a motion to dismiss, we assume the truth of the facts as
set out in the complaint.”).
Plaintiff is deaf and prefers to communicate through
American Sign Language (ASL), which is his primary lan-
guage. Plaintiff’s ability to communicate in English is more
limited. In October 2015, plaintiff was arrested and taken
to the Clackamas County Jail. Based on communications
with plaintiff without the assistance of an ASL interpreter,
a deputy incorrectly flagged plaintiff as being a suicide risk.
738 Abraham v. Corizon Health, Inc.
As a result, plaintiff was placed on suicide watch.
Defendant has a contract with Clackamas County to pro-
vide medical and mental health services at the jail and was
responsible for plaintiff’s care and for further assessment.
Over the course of three days, defendant’s staff was unable
to communicate effectively with plaintiff but failed to pro-
vide an ASL interpreter. As a result of defendant’s staff’s
misunderstandings, plaintiff, who is diabetic, was denied
meals and access to insulin. Also, as a result of defendant’s
inability to communicate with plaintiff, plaintiff remained
on suicide watch for three days.
Plaintiff filed suit against defendant in federal dis-
trict court alleging, among other claims, that defendant was
a “place of public accommodation” that had discriminated
against him because he is “an individual with a disability,”
in violation of ORS 659A.142(4). Plaintiff initially sought
only equitable relief, and the district court dismissed the
claim on standing grounds because plaintiff was no longer
incarcerated. In the order that is the basis for plaintiff’s cur-
rent appeal, the district court denied plaintiff’s motion to
amend his complaint to add a claim for compensatory dam-
ages on the grounds that the amendment would be futile.
The district court concluded that defendant was not a “place
of public accommodation,” as defined by ORS 659A.400(1)(a),
meaning that ORS 659A.142(4) did not apply to defendant’s
provision of medical services in a jail setting.
Plaintiff appealed to the Ninth Circuit, arguing that
the district court had construed the statutory term “public
accommodation” too narrowly and asking the Ninth Circuit
to certify that question of state law to this court. In response,
defendant both disputed plaintiff’s interpretation of ORS
659A.400(1)(a) and argued that ORS 659A.142 was inappli-
cable to plaintiff’s case for a second reason: Plaintiff was
neither a “customer” nor “patron” of defendant’s services.
The Ninth Circuit reviewed Oregon case law inter-
preting ORS 659A.400(1)(a) and, noting that “Oregon
courts have yet to address whether a private contractor like
[defendant] constitutes a ‘place of public accommodation,’ ”
expressed uncertainty about whether Oregon courts would
conclude that defendant meets the definition. Abraham,
Cite as 369 Or 735 (2022) 739
985 F3d at 1202. The Ninth Circuit likewise noted that
no Oregon case addresses whether ORS “659A.142(4)’s use
of the terms ‘customer or patron’ excludes plaintiffs like”
plaintiff. Id. Rather than decide those questions of state law
itself, the Ninth Circuit certified the following question to
this court:
“Is a private contractor providing healthcare services at
a county jail a ‘place of public accommodation’ within the
meaning of Oregon Revised Statutes § 659A.400 and sub-
ject to liability under § 659A.142?”
Abraham, 985 F3d at 1199. We accepted the certified
question.
ANALYSIS
We understand the certified question to present
several distinct, though related, issues of statutory con-
struction. The first question is whether plaintiff was a “cus-
tomer” or “patron” of defendant’s services. Defendant has
not renewed that argument in its briefing before this court;
nevertheless, we understand the Ninth Circuit’s certification
order to encompass that question, which must be resolved in
plaintiff’s favor for defendant to be “subject to liability under
[ORS] 659A.142.” The second question for our consideration,
assuming that we decide the first question in plaintiff’s
favor, is whether defendant qualifies as a “place of public
accommodation,” as that term is defined in ORS 659A.400.
Resolving that dispute, however, itself involves two distinct
questions: whether defendant meets the general definition
of a public accommodation contained in ORS 659A.400
(1)(a) and, if so, whether defendant falls into an exclusion
from that definition for “local correction facilit[ies],” con-
tained in ORS 659A.400(2)(d). To answer each of those
questions, we employ our ordinary approach to statutory
construction, considering text and context together with
any legislative history that we might find helpful. State v.
Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).
We begin by addressing whether plaintiff qualifies
as a “customer or patron” of defendant’s services. That ques-
tion is made relevant by the wording of ORS 659A.142(4),
the statutory basis of plaintiff’s claim against defendant:
740 Abraham v. Corizon Health, Inc.
“It is an unlawful practice for any place of public accommo-
dation, resort or amusement as defined in ORS 659A.400,
or any person acting on behalf of such place, to make any
distinction, discrimination or restriction because a cus-
tomer or patron is an individual with a disability.”
ORS 659A.142(4). To state a claim under ORS 659A.142(4),
plaintiff must therefore show that he was a “customer or
patron” who was subjected to “any distinction, discrimina-
tion or restriction” by defendant or its agents because he “is
an individual with a disability.”
Before the Ninth Circuit, defendant argued that “an
involuntarily detained inmate in a jail is not a ‘customer’ or
‘patron’ of jail services in the ordinary sense of purchasing
or seeking out those medical services.” Defendant relied on
Fenimore v. Blachly-Lane County C.E.A., 297 Or App 47, 59,
441 P3d 699 (2019), where the Court of Appeals held that a
plaintiff who could neither actually nor potentially use the
defendant’s services did not qualify as a patron or customer.1
Responding to that argument, plaintiff argues that
all that is required for a plaintiff to be a “patron or cus-
tomer” is that the plaintiff use the defendant’s services. He
argues that the ordinary meaning of those terms does not
restrict the coverage of ORS 659A.142(4) to individuals with
disabilities who personally pay for the services that they
use.
Before turning to the text, we first clarify the pre-
cise question before us. We do not need to decide, in this case,
whether plaintiff would qualify as a customer or patron of
the Clackamas County Jail. Defendant is not the jail; rather,
it is a separate entity that provides a set of services to people
in the jail’s custody. Defendant’s argument is that, because
plaintiff has not alleged that he personally paid for those
1
Fenimore concerned a claim against a private electric cooperative by a
plaintiff who did not and—because she lived outside of the service area of the
cooperative—could not purchase energy or receive other services from the defen-
dant. 297 Or App at 48-49. The basis of the plaintiff’s claim was that a meeting
that she attempted to attend as a guest was not wheelchair accessible. Id. The
Court of Appeals held that, because the “plaintiff was not capable of patronizing
or purchasing services from the cooperative,” she was not a patron or customer.
Id. at 59-60. The rationale behind the decision in Fenimore is not implicated here,
because plaintiff could and did use defendant’s services.
Cite as 369 Or 735 (2022) 741
services, or because he had no choice but to receive defen-
dant’s services, he does not qualify as a “patron” or “cus-
tomer” within the ordinary meaning of those terms.
Unlike “place of public accommodation,” neither
“customer” nor “patron” is a statutorily defined term in the
context of ORS 659A.142.2 As a result, we begin our inquiry
into their ordinary meanings by looking to the pertinent dic-
tionary definitions. “Customer,” as relevant here, is defined
as
“a : one that purchases some commodity or service <she
had never seen that ~ before>; esp : one that purchases
systematically or frequently * * * b : one that patronizes or
uses the services (as of a library, restaurant, or theater)
: client[.]”
Webster’s Third New Int’l Dictionary 559 (unabridged ed
2002). “Patron,” in its relevant sense, is defined as
“a steady or regular client: as a : an habitual customer of a
merchant b : a regular client of a physician c : a parent or
guardian of a child in a private school d : one who uses the
services of a library and esp. of a public library[.]”
Id. at 1656.
Those dictionary definitions provide little support
for defendant’s argument that plaintiff does not meet the
requirements of the statute. Although one subsense of “cus-
tomer” does refer to the purchase of a service, the coordi-
nate subsense suggests that simply using a service may be
enough to be considered a customer. And although the term
“patron” may connote regularity, it is not defined to exclude
the use of services that are free or for which there may be
no ready alternative. Defendant’s argument rests only on
what defendant perceives to be the “ordinary sense” of those
words and points to nothing in the context or legislative
2
The term “customer” is defined by ORS 659A.411(1) as “an individual who is
lawfully on the premises of a place of public accommodation.” However, that defi-
nition expressly applies only to ORS 659A.411 to 659A.415, not to ORS 659A.142.
In addition, that definition was enacted well after ORS 659A.142, and we do not
believe that it sheds light on what an earlier legislature meant by the word “cus-
tomer” in a different part of chapter 659A. See Or Laws 2009, ch 415, § 1 (creating
ORS 659A.411); Or Laws 1973, ch 660, § 7 (enacting what is now ORS 659A.142,
including the terms “customer” and “patron”).
742 Abraham v. Corizon Health, Inc.
history of ORS 659A.142(4) that would suggest that the leg-
islature intended to deny protection from discrimination to
a person who had no choice but to use a particular service
or to a person who uses services paid for by someone else.
Because plaintiff falls within the ordinary meaning of the
word “customer,” we reject defendant’s argument.
We now turn to whether defendant qualifies as a
place of public accommodation. As noted above, for defen-
dant to be liable under ORS 659A.142(4), it must be a “place
of public accommodation, resort or amusement as defined
in ORS 659A.400” or a “person acting on behalf of such
[a] place.” ORS 659A.400 defines a place of public accom-
modation, for purposes of both ORS 659A.142(4) and ORS
659A.403, which prohibits discrimination in such places
on the basis of “race, color, religion, sex, sexual orientation,
gender identity, national origin, marital status or age.” In
full, ORS 659A.400 provides:
“(1) A place of public accommodation, subject to the
exclusions in subsection (2) of this section, means:
“(a) Any place or service offering to the public accom-
modations, advantages, facilities or privileges whether in
the nature of goods, services, lodgings, amusements, trans-
portation or otherwise.
“(b) Any place that is open to the public and owned or
maintained by a public body, as defined in ORS 174.109,
regardless of whether the place is commercial in nature.
“(c) Any service to the public that is provided by a pub-
lic body, as defined in ORS 174.109, regardless of whether
the service is commercial in nature.
“(2) A place of public accommodation does not include:
“(a) A Department of Corrections institution as defined
in ORS 421.005.
“(b) A state hospital as defined in ORS 162.135.
“(c) A youth correction facility as defined in ORS
420.005.
“(d) A local correction facility or lockup as defined in
ORS 169.005.
“(e) An institution, bona fide club or place of accommo-
dation that is in its nature distinctly private.”
Cite as 369 Or 735 (2022) 743
As noted above, to resolve whether an entity is
a place of public accommodation, we must first consider
whether it meets any of the definitions contained in ORS
659A.400(1) and then whether it qualifies for any of the
exceptions in ORS 659A.400(2). Although those questions
are not unrelated—because each of the provisions of ORS
659A.400 may be relevant context for interpreting the
others—they are nevertheless distinct and require separate
analyses.
We begin with whether defendant qualifies as a
place of public accommodation under ORS 659A.400(1).
Plaintiff does not argue that defendant falls under the defi-
nitions found in ORS 659A.400(1)(b) and (c), which apply to
public bodies, so the proper focus of our initial inquiry is
ORS 659A.400(1)(a). Under that provision, there is no dis-
pute that defendant’s medical services fall within the expan-
sive ambit of the phrase “advantages, facilities or privileges
whether in the nature of goods, services, lodgings, amuse-
ments, transportation or otherwise.” ORS 659A.400(1)(a).
Rather, the question is whether defendant offers those ser-
vices “to the public.”
Defendant argues that it does not, contending that
the general test should be whether “the place or service
generally is accessible or available to the general public on
an indiscriminate or unscreened basis.” Defendant there-
fore argues that it is not a place of public accommodation
because “jail services for prisoners are not held out as open
or offered to the general public, or any subset of the general
public, in any way.”
We do not see the answer as quite that straight-
forward. In part, defendant’s argument turns on a conten-
tion that people incarcerated in a jail are not part of the
“public” at all, for purposes of ORS 659A.400. Or, as defen-
dant puts it, that “[p]risoners also are segregated from the
general public, rather than a subset of the general public.”
We cannot agree with that premise. Under Oregon law, even
a person who has been convicted of a felony,
“[e]xcept as otherwise provided by law, * * * does not
suffer civil death or disability, or sustain loss of civil
rights or forfeiture of estate or property, but retains
744 Abraham v. Corizon Health, Inc.
all of the rights of the person, political, civil and other-
wise, including, but not limited to, the right * * * to main-
tain and defend civil actions, suits or proceedings.”
ORS 137.275. And jails frequently house individuals who,
like plaintiff, have not been convicted of any crime. Because
the people imprisoned in the Clackamas County Jail have
not lost their rights under Oregon’s antidiscrimination laws,
it would make little sense to discount them from our under-
standing of the term “public” as that word is used in ORS
659A.400(1)(a).
Instead, we understand the primary dispute between
plaintiff and defendant to come down to how broadly a ser-
vice needs to be offered before it can be said to be offered
“to the public,” as that term is used in ORS 659A.400(1)(a).
Plaintiff takes the position that a service offered only to a
subset of the public qualifies as being offered “to the public,”
whereas defendant contends that the service must be offered
to the “general public on an indiscriminate or unscreened
basis.”
Defendant’s argument is not without some textual
support. The word “public” is defined, in the senses that
seem most relevant here, as
“2 a : an organized body of people : community, nation
* * * b : the people as a whole : populace, masses * * *
3 : a group of people distinguished by common interests or
characteristics[.]”
Webster’s at 1836. As can be seen, the word “public” can
readily be used to refer to the entire populace, such that
offering services “to the public” could mean, as defendant
contends, services offered to everyone on an “indiscrimi-
nate or unscreened basis.” But the word “public” does not
always take on a scope that expansive. As the above defini-
tions show, the word “public” can also refer more narrowly
to a particular community or to a smaller group. The same
dichotomy is present in Black’s Law Dictionary’s definition
of the term at the time that “to the public” was added to
what is now ORS 659A.400. The word “public” may mean,
“[i]n one sense, everybody,” but, “[i]n another sense[,] the
word does not mean all the people, nor most of the peo-
ple, nor very many of the people of a place, but so many of
Cite as 369 Or 735 (2022) 745
them as contradistinguishes them from a few.” Black’s Law
Dictionary 1393 (4th ed 1951). As a result, the use of the
word “public” alone does not tell us how broadly defendant’s
services must be offered for it to qualify as a place of public
accommodation.
At minimum, it is clear from context that, whatever
the meaning of “to the public,” a service provider cannot
escape the reach of ORS 659A.400(1)(a) simply by restrict-
ing its coverage on a basis prohibited by ORS 659A.4033 or
ORS 659A.142(4)—a restaurant cannot argue that it does
not provide services to the public because it hangs a “whites
only” sign in the window. To hold otherwise would essentially
nullify ORS 659A.403. But defendant does not dispute that
point, and, on its own, it offers little guidance as to the kinds
of restrictions in clientele, beyond those restrictions prohib-
ited by Oregon law, that are compatible with a service none-
theless being considered a place of public accommodation.
One contextual cue favors reading ORS 659A.400
(1)(a) to encompass businesses that offer goods or services on
a somewhat restricted basis. Since the enactment of what is
now ORS 659A.400(1)(a) in 1961, it has been paired with an
exception now found in ORS 659A.400(2)(e)4 for “[a]n insti-
tution, bona fide club or place of accommodation that is in
its nature distinctly private.” Defendant’s understanding of
ORS 659A.400(1)(a) would not only render ORS 659A.400
(2)(e) superfluous but would leave a massive gulf between the
coverage of ORS 659A.400(1)(a) and the exclusion. Because
any meaningful qualification on who can access a service
would, on defendant’s view, exclude it from the definition
of a public accommodation, the question whether a place of
public accommodation was “in its nature distinctly private”
would not come close to mattering.
We have addressed ORS 659A.400 once before, in
Schwenk v. Boy Scouts of America, 275 Or 327, 551 P2d 465
3
ORS 659A.403(1) prohibits discrimination in places of public accommoda-
tion “on account of race, color, religion, sex, sexual orientation, gender identity,
national origin, marital status or age if the individual is of age, as described in
this section, or older.”
4
As we discuss below, the other exceptions in ORS 659A.400(2) were added
in a 2013 bill that did not amend ORS 659A.400(1)(a), so they are therefore less
helpful to understanding what that provision means. Or Laws 2013, ch 429, § 1.
746 Abraham v. Corizon Health, Inc.
(1976). In that case, we confronted a suit against the Boy Scouts
of America brought by a young girl who had been rejected
from membership as a cub scout. Id. at 329. In that case, we
reviewed the legislative history of former ORS 30.675 (1975),
renumbered as ORS 659A.400 (2001), to discern whether the
Boy Scouts qualified as a place of public accommodation.
Id. at 331-34. We concluded that the legislative history made
clear that the “primary concern and purpose of the Oregon
legislature * * * was to prohibit discrimination by business or
commercial enterprises which offer goods or services to the
public,” such that the definition of a place of public accommo-
dation should not be understood to extend to a noncommer-
cial organization like the Boy Scouts. Id. at 334 (emphasis in
original). We located that limitation in the phrase “place or
service,” having concluded that those were “general terms and
the intended meaning of such words in any given context may
depend upon the intent with which such words were used.”
Id. at 331. That specific holding is of little relevance here, how-
ever, because defendant is a commercial entity, and it does
not dispute that it provides services.5 However, it is notable
that we did not decide the case on the grounds that the Boy
Scouts did not offer services to the public, even though the
services that it was alleged to provide, “scouting services and
programs,” were restricted not only by sex but also by age.
Id. at 329. Indeed, we acknowledged that, notwithstanding its
noncommercial nature, the Boy Scouts might not qualify as
a “bona fide club or place of accommodation which is in its
nature distinctly private.” Id. at 335.
As in Schwenk, we resolve the textual ambigu-
ity before us by turning to the legislative history of ORS
5
The dissent argues that the legislature would not have wanted Oregon’s
antidiscrimination laws to “apply in the context of jails and prisons” because
jails and prisons are not business or commercial enterprises. 369 Or at 760-61
(Garrett, J., dissenting). But defendant is a commercial enterprise, and it does
not escape that status by contracting with an organization or government body
that is not commercial in nature. Along the same lines, we fail to understand
the dissent’s claim that jails “exist to separate their populations from the ordi-
nary commercial life to which public accommodations laws have always been
addressed.” Id. (emphasis in original). Of course, if those in the custody of the
Clackamas County Jail were completely isolated from service-providing commer-
cial entities, they would neither receive nor require the protections conferred by
ORS 659A.400(1)(a). It is precisely because commercial enterprises like defen-
dant are present in the Clackamas County Jail that ORS 659A.400(1)(a) is impli-
cated here.
Cite as 369 Or 735 (2022) 747
659A.400. What is now ORS 659A.400 originated in 1953
as part of a bill forbidding discrimination in any “place of
public accommodation, resort, or amusement * * * on account
of race, religion, color, or national origin.” Or Laws 1953,
ch 495, § 1; see also Schwenk, 275 Or at 331-32 (discussing
that history). As first enacted, a “place of public accommoda-
tion, resort, or amusement” was defined to mean
“any hotel, motel or motor court, any place offering to the
public food or drink for consumption on the premises, or
any place offering to the public entertainment, recreation
or amusement; provided that nothing contained in this Act
shall be construed to include or apply to any institution,
bona fide club or place of accommodation, resort or amuse-
ment, which is in its nature distinctly private.”
Or Laws 1953, ch 495, § 2.
Subsequent amendments, however, substantially
expanded that once-limited scope. First, in 1957, the legis-
lature added additional categories of places of public accom-
modation—trailer parks and campgrounds—reorganizing
the statute in the process:
“(1) A place of public accommodation, resort or amuse-
ment, subject to the exclusion in subsection (2) of this sec-
tion, means:
“(a) Any hotel, motel, motor court, trailer park or
campground.
“(b) Any hotel offering to the public food or drink for
consumption on the premises.
“(c) Any place offering to the public entertainment,
recreation or amusement.
“(2) However, a place of public accommodation, resort
or amusement does not include any institution, bona fide
club or place of accommodation, resort or amusement,
which is in its nature distinctly private.”
Or Laws 1957, ch 724, § 1.
A more significant expansion occurred four years
later, in 1961. Senate Bill (SB) 75 (1961) made two changes
to that statutory wording. First, it amended former ORS
30.675(1)(b) (1955) to include hotels “offering to the public
748 Abraham v. Corizon Health, Inc.
food or drink for consumption on or off the premises.” Or
Laws 1961, ch 247, § 1 (emphasis added). Second, and more
importantly, it added a catchall provision to the end of sub-
section (1), defining place of public accommodation, amuse-
ment, or resort to include “[a]ny place offering to the public
goods or services.” Or Laws 1961, ch 247, § 1.
The legislative history of SB 75 shows that that
expansion was the result of concerns about racial discrim-
ination in a variety of areas, including “health and beauty
salons, barber shops and medical services.” Schwenk, 275 Or
at 333; see also Testimony, Senate Committee on State and
Federal Affairs, SB 75, Feb 9, 1961, Ex 4 (statement of Joint
Council for Social Welfare Legislation) (“This amendment to
the Public Accommodations Law would cover such places as
barber shops, beauty parlors, health studios, physicians and
the like.”). Although much of the testimony focused on spe-
cific types of services where discrimination was common, the
legislature adopted a broader solution, extending Oregon’s
public accommodations laws to encompass all goods and ser-
vices that were provided to the public.
Much of the debate over SB 75, including the exam-
ples of services that would be covered, cuts against defen-
dant’s contention that services offered to the public were
limited to services that were offered on “an indiscriminate
or unscreened basis.” For example, a substantial amount
of the testimony in support of the bill focused on discrim-
ination by weight loss services and beauty salons that
appeared to exclusively serve women but that discriminated
within that clientele on the basis of race. See Cover Letter
and Testimony, Senate Committee on State and Federal
Affairs, SB 75, Feb 9, 1961, Ex 7 (statement of Harry C.
Ward, President of the Portland Branch of the NAACP)
(“Complaints have come particularly from women who
sought slenderizing services from Marie Easterly * * * and
Slenderella (a nationally known chain). Some of our larger
places do accept minorities for ladies hair styling but there
are also firms that do not.”); Testimony, Senate Committee
on State and Federal Affairs, SB 75, Feb 9, 1961, Ex 2 (state-
ment of E. Shelton Hill, Executive Director of the Urban
League of Portland) (reporting racial discrimination by
“Health Studies and Reducing Salons” that served women).
Cite as 369 Or 735 (2022) 749
There was no suggestion that, because those businesses did
not serve the entire public—and would not do so even if they
ceased discriminating on the basis of race—they would not
be covered by the text of SB 75.
The legislature next amended the definition of place
of public accommodation in 1973, as part of House Bill (HB)
2116 (1973), the bill that expanded Oregon’s bar on dis-
crimination in places of public accommodation to include
discrimination on the basis of sex and marital status. Or
Laws 1973, ch 714, §§ 2, 8. As a result of that amendment,
former ORS 30.675 (1973) defined a place of public accommo-
dation to mean, “subject to the exclusion in subsection (2),”
“any place or service offering to the public accommodations,
advantages, facilities or privileges whether in the nature
of goods, services, lodgings, amusements or otherwise.”
Former ORS 30.675(1) (1973). Subsection (2), which was not
meaningfully changed, continued to exclude “any institu-
tion, bona fide club or place of accommodation which is in its
nature distinctly private.” Former ORS 30.675(2) (1973). The
1973 amendment simplified the definition by expanding the
catchall provision to include “accommodations, advantages,
facilities or privileges whether in the nature of goods, ser-
vices, lodgings, amusements or otherwise,” rather than just
services, and eliminating the listed places of public accom-
modation, which were now redundant (and which perhaps
had been redundant since the addition of the catchall provi-
sion in 1961). As a result, there was now a single definition
of a place of public accommodation accompanied by a single
exclusion.
As was the case with SB 75 (1961), HB 2116 (1973)
addressed discrimination broadly, but its advocates focused
on particular areas in which discrimination was particu-
larly prevalent or harmful. One of the areas where sex and
marital status discrimination was particularly prevalent,
and which HB 2116 was intended to address, was the avail-
ability of credit. Exhibit 7, House Committee on State and
Federal Affairs, HB 2116, Mar 2, 1973 (statement of Neil
Robblee) (“Almost one-third of the mortgage lenders in the
Portland area require statements certifying the wife’s ste-
rility or her use of contraceptives before they will include
her income in the loan. * * * The reality behind this data is
750 Abraham v. Corizon Health, Inc.
that vast numbers of women in Oregon have been denied
credit because of their sex.”); Exhibit 1, House Committee on
State and Federal Affairs, HB 2116, Mar 2, 1973 (statement
of Eleanor M. Meyers) (“The Bureau of Labor has heard
from citizens about experiences indicating discrimination
because of one’s sex exists in some restaurant facilities,
some hotel and motel rental practices, some practices in the
sale of business services, and a large number of experiences
relating to the granting of credit services.”). In passing HB
2116, the legislature understood that the definition of place
of public accommodation was an expansive one and that it
would cover credit-related services, as well as many other
businesses:
“With the exception of governmental services and those of
distinctly private institutions, the terms of the statutes on
discrimination in public accommodations are quite com-
prehensive. The language used in guaranteeing ‘full and
equal accommodations, advantages, facilities and priv-
ileges without distinction or restriction’ and including in
the definition of a public accommodation ‘any place offering
to the public goods and services’ would include literally all
phases of any business soliciting public patronage, includ-
ing the service of granting the use of credit, and financ-
ing and loan services which is one of the most widespread
areas of discrimination based on sex.”
Exhibit 1, House Committee on State and Federal Affairs,
HB 2116, Mar 2, 1973 (statement of Eleanor M. Meyers); see
also Schwenk, 275 Or at 334 (discussing the purpose of HB
2116).
That legislative history again contradicts defen-
dant’s contention that a service must be offered on “an
indiscriminate or unscreened basis” to qualify as a place
of public accommodation. The credit and loan services that
the legislature clearly intended to cover necessarily would
frequently involve some degree, and possibly a great degree,
of screening and selectivity, but the legislature did not
understand that to keep them from being places of public
accommodation.
ORS 659A.400 was amended most recently in 2013.
One of the amendments added the word “transportation” to
Cite as 369 Or 735 (2022) 751
the list of “accommodations, advantages, facilities or privi-
leges” covered by the definition. Or Laws 2013, ch 530, § 4.
The other, more substantial, change added two additional
categories of public accommodations:
“(b) Any place that is open to the public and owned or
maintained by a public body, as defined in ORS 174.109,
regardless of whether the place is commercial in nature.
“(c) Any service to the public that is provided by a pub-
lic body, as defined in ORS 174.109, regardless of whether
the service is commercial in nature.”
Or Laws 2013, ch 429, § 1. That amendment also added four
new categories of exclusions, including the exclusion for local
correction facilities. Or Laws 2013, ch 429, § 1. However,
that bill did not amend ORS 659A.400(1)(a), the definition
at issue here, so—although we address it below, in the pro-
cess of interpreting ORS 659A.400(2)(d)—it is of limited rel-
evance to the specific question before us.
The legislative history therefore shows us that
adopting defendant’s rule—that, to be offered to the public, a
service must be offered on an “indiscriminate or unscreened
basis”—would exclude classes of services that the legislature
clearly intended to cover as places of public accommodation.
That provides a strong indication that the fact that a service
is limited to a subset of the public is, at least under some
circumstances, compatible with that service being offered
to the public within the meaning of ORS 659A.400(1)(a).
However, that fact alone does not resolve how broadly that
principle extends or help us discern when a service is offered
too restrictively to count as being provided “to the public.”
The legislative history also highlights that, at the
point at which the current phrasing of ORS 659A.400(1)(a)
was solidified—through the 1961 and 1973 amendments—
that provision was placed in opposition to what was at those
times the only exclusion, the exception for “[a]n institution,
bona fide club or place of accommodation that is in its nature
distinctly private.” Although the legislative history summa-
rized above provides evidence of the types of services that
the legislature wished to include, the retention of the excep-
tion and its juxtaposition with the catchall definition pro-
vides the clearest evidence of the types of services that the
752 Abraham v. Corizon Health, Inc.
legislature wished to exclude: services that are distinctly
private in nature and that are not offered even to a defined
segment of the public. We understand, in context, that the
“to the public” requirement does not limit public accommoda-
tions only to services offered to the entire public. Rather, that
requirement is intended to draw a distinction between ser-
vices offered broadly, even with some significant restrictions,
and services provided on a distinctly private basis.6 We think
that understanding is most compatible with the legisla-
ture’s clear intention that ORS 659A.400(1)(a) apply even
when the service is selectively offered to a segment of the
public.
Moving somewhat beyond its assertion that a ser-
vice must be offered on an entirely unscreened basis, defen-
dant’s briefing acknowledges that, under its understanding
of ORS 659A.400, a service need not be offered “to every
member of the general public without limitation” to qual-
ify as a public accommodation. As an example of an orga-
nization that serves only a subset of the general public yet
still qualifies as a place of public accommodation, defendant
cites Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 410
US 431, 93 S Ct 1090, 35 L Ed 2d 403 (1973), a case in which
the United States Supreme Court held that a club—with a
325-family membership limit, mostly restricted to residents
within a three-quarter-mile radius of the club’s location—
did not qualify for the private club exception to Title II of the
Civil Rights Act of 1964. See 42 USC § 2000a(e) (“The pro-
visions of this subchapter shall not apply to a private club
or other establishment not in fact open to the public, except
to the extent that the facilities of such establishment are
made available to the customers or patrons of an establish-
ment within the scope of subsection (b).”). There, the Court
reasoned that, because the club’s membership was open to
every white resident in a given geographic area, it did not
qualify as a private club. Tillman, 410 US at 438. Defendant
accepts that such an institution would qualify as a place of
public accommodation under ORS 659A.400(1)(a).
6
Organizations that are not commercial in nature may fail to qualify as a
place of public accommodation even if they are not distinctly private. Schwenk,
275 Or at 335. But that is because they may not offer a place or service, within
the meaning of ORS 659A.400(1)(a), at all.
Cite as 369 Or 735 (2022) 753
But that example does not help defendant, for defen-
dant offers no clear distinction between the types of quali-
fications that defendant regards as being consistent with a
service being offered to the public—such as a limitation to
residents within a small geographical area—and the sole
qualification attendant to the services offered by defendant—
that the recipient be at least temporarily in custody in the
Clackamas County Jail. In both of those scenarios, the ser-
vices are not offered to every member of the public, and
may in fact be offered only to a small subset of the general
public, but they lack the element of selectivity necessary
to qualify as distinctly private. Accord Lahmann v. Grand
Aerie of Fraternal Order of Eagles, 180 Or App 420, 434,
43 P3d 1130, rev den, 334 Or 631 (2002) (“[W]hether an
organization is a place of public accommodation turns on
(1) whether it is a business or commercial enterprise and
(2) whether its membership policies are so unselective that
the organization can fairly be said to offer its services to the
public.”).
Here, although defendant limits its services to peo-
ple who are in custody in the Clackamas County Jail, defen-
dant does not, at least as alleged in the complaint, impose
any additional selective criteria. And, although a jail may
be restrictive in whom it houses, it also is not selective in
the way that a club or other distinctly private organization
is, such that defendant’s provision of its services only to res-
idents of the jail could cause defendant to fall within the
“distinctly private” exception in ORS 659A.400(2)(e). We
therefore conclude that it offers those services to the public
within the meaning of ORS 659A.400(1)(a). Although defen-
dant does not serve the public at large, and offers its ser-
vices in a restricted environment, that does not diminish
the legislature’s expressed interest in ensuring that the ser-
vices that defendant does provide are provided on a nondis-
criminatory basis.
Finally, we address defendant’s argument that, even
if it satisfies the general definition of a public accommoda-
tion in ORS 659A.400(1)(a), it is nevertheless excluded from
being considered a place of public accommodation by ORS
659A.400(2)(d). ORS 659A.400(2) provides:
754 Abraham v. Corizon Health, Inc.
“A place of public accommodation does not include:
“(a) A Department of Corrections institution as defined
in ORS 421.005.
“(b) A state hospital as defined in ORS 162.135.
“(c) A youth correction facility as defined in ORS
420.005.
“(d) A local correction facility or lockup as defined in
ORS 169.005.
“(e) An institution, bona fide club or place of accommo-
dation that is in its nature distinctly private.”
A “local correctional facility” is defined by ORS 169.005(4)
as “a jail or prison for the reception and confinement of pris-
oners that is provided, maintained and operated by a county
or city and holds persons for more than 36 hours.”7
The difficulty with defendant’s reliance on the exclu-
sion contained in ORS 659A.400(2)(d) is that defendant does
not meet the statutory definition of a “local correction facil-
ity.” Defendant is not a “jail or prison” and, even if it were,
it is not “provided, maintained and operated by a county or
city.” ORS 169.005(4). As written, the exclusion contained in
ORS 659A.400(2)(d) does not extend to private commercial
entities that provide services at a local correction facility; it
excludes the local correction facility itself from the defini-
tion of a place of public accommodation.
We understand defendant to interpret ORS 659A.400
(2)(d) as establishing a physical place where Oregon’s public
accommodations laws do not apply, rather than setting out
entities exempted from those laws. That is, defendant advo-
cates for understanding ORS 659A.400(2)(d) to exclude from
the definition of a place of public accommodation not only the
jail itself, but also any other entity that operates within that
physical location. According to defendant, “[m]edical ser-
vices for prisoners at a jail delivered by a private healthcare
provider fit within that express statutory exclusion because,
regardless of the nature of the service provider, services at
7
A “lockup” is defined as “a facility for the temporary detention of arrested
persons held up to 36 hours, excluding holidays, Saturdays and Sundays, but the
period in lockup shall not exceed 96 hours after booking.” ORS 169.005(5).
Cite as 369 Or 735 (2022) 755
a jail are not provided at a ‘place of public accommodation’
under ORS 659A.400.” (Emphasis added.)
The dissent also seems to argue that the exemption
applies not only to services provided by a jail but also to ser-
vices that are provided at a jail. Although the dissent seems
to agree with the majority that the legislature did not intend
to exempt local correctional facilities as buildings, 369 Or at
765-66 (Garrett, J., dissenting), it cites the dictionary defi-
nition of “facility” and argues that the legislature intended
to exempt “the building and the services provided within it,
at least those services, including the delivery of food and
medical care, that are inseparable from the function of con-
fining people for long periods of time.” Id. (Garrett, J., dis-
senting) (first emphasis in original; second emphasis added)
(footnote omitted).
The problem with both arguments is that we are
not free to substitute the dictionary definition of a term for
a definition that the legislature has expressly directed us
to use—here, the definition of “local correctional facility”
contained in ORS 169.005(4). See Patton v. Target Corp.,
349 Or 230, 239, 242 P3d 611 (2010) (“[T]he legislature is
free to define words to mean anything that it intends them
to mean, including defining words in a manner that var-
ies from a dictionary definition or common understand-
ing.” (Internal quotation marks omitted.)); see also Jack L.
Landau, Oregon Statutory Construction, 97 Or L Rev 583,
651 (2019) (“If the legislature defines a term, then that’s
what it means. Period.”). Both the argument of defendant
and the argument of the dissent are poor fits for the actual
wording of the statute.
Under current law, a place of public accommodation
need not be a physical place at all—that term is defined to
include “[a]ny place or service offering to the public accommo-
dations, advantages, facilities or privileges whether in the
nature of goods, services, lodgings, amusements, transpor-
tation or otherwise.” ORS 659A.400(1)(a) (emphasis added).
If defendant qualifies as a place of public accommodation
because of the services that it provides, it does not matter
whether it provides those services at a physical location that
independently qualifies as a place of public accommodation.
756 Abraham v. Corizon Health, Inc.
Likewise, ORS 659A.400(1)(c) defines a place of public
accommodation to include “[a]ny service to the public that is
provided by a public body, as defined in ORS 174.109, regard-
less of whether the service is commercial in nature”—again,
without reference to where that service is provided. As a
result, excluding a local correction facility from the defini-
tion of a place of public accommodation does not imply that
service providers like defendant are exempted as well. When
ORS 659A.400(2) states that “[a] place of public accommo-
dation does not include,” among other things, “[a] local cor-
rection facility or lockup as defined in ORS 169.005,” the
most straightforward reading is that it simply prevents a
local correction facility from being considered a place of pub-
lic accommodation—there is no textual basis for inferring
additional exclusions for private entities that operate in the
same space.
Indeed, during discussion of the bill that created
ORS 659A.400(2)(d), the legislature recognized that there
would necessarily be some situations where two entities
that share the same physical space have different duties
under Oregon’s antidiscrimination laws because only one of
those entities qualifies as a place of public accommodation.
A Bureau of Labor and Industries representative gave an
example of such a divergence at a hearing on the bill:
“The issue came up in the House about what happens if a
church rents from a school gym and that church may or
may not be open to, say, gay members. The school’s antidis-
crimination policy would not inure to the renter. In other
words, the school’s only responsibility would be to say not
to discriminate in to whom they rent. So if they rent to
a Methodist church they’re [going to] have to rent to an
Episcopal church as well.”
Audio Recording, Senate Committee on Judiciary, HB 2668,
May 9, 2013, at 18:00 (statement of Elizabeth Cushwa),
https://olis.oregonlegislature.gov (accessed May 24, 2022).
That shows that, as understood by the legislature that
enacted ORS 659A.400(2)(d), it would not be unusual for
Oregon’s civil rights laws to impose different obligations
on different users of the same space, as when a private
group qualifying for the exception in ORS 659A.400(2)(e)
Cite as 369 Or 735 (2022) 757
rents space at a hotel or public building. We see no reason
to assume that the exception in ORS 659A.400(2)(d) would
operate differently.
Two additional aspects of the legislative history of
ORS 659A.400(2)(d) cut against defendant’s reading. The
first is that the exception for local correctional facilities
was enacted as part of a bill that extended the definition of
place of public accommodation to cover public agencies. As
initially conceived, the bill would have extended the defini-
tion of “place of public accommodation” in ORS 659A.400(1)
to cover public bodies without creating any new exceptions.
Representatives of the Oregon Department of Corrections
and the Oregon State Sheriffs’ Association opposed that
approach, arguing that concerns particular to the corrections
setting justified an exemption. Audio Recording, Senate Com-
mittee on Judiciary, HB 2668, May 9, 2013, at 22:58 (state-
ment of Darrell Fuller), https://olis.oregonlegislature.gov
(accessed May 24, 2022). The bill was subsequently amended
to create the exceptions for local correction facilities, pris-
ons, state hospitals, and juvenile detention facilities set out
in ORS 659A.400(2). See HB 2668 (2013), -3 amendments
(May 29, 2013). In that context, it makes sense to under-
stand the exceptions that were added as designed to exempt
the public entities that would otherwise be covered by the
expanded scope of ORS 659A.400(1), and to exempt them
as public entities, rather than as physical locations. It also
makes sense to understand the legislature as focusing on
the public entities that it intended to exempt rather than on
private companies that would not have been affected by the
amendments to ORS 659A.400(1).
Second, the representative of the Oregon State
Sheriffs’ Association who proposed the amendment justified
it based on two concerns. The first was that expanding cover-
age to jails and prisons might “open[ ] up BOLI to a whole lot
of complaints that they maybe don’t want to have to handle”
because of “inmates who that’s kind of what they consider
their job to be as an inmate is to file grievances all the time.”
Audio Recording, Senate Committee on Judiciary, HB 2668,
May 9, 2013, at 23:44 (statement of Darrell Fuller), https://
olis.oregonlegislature.gov (accessed May 24, 2022). The
758 Abraham v. Corizon Health, Inc.
second was that there would be “circumstances where some
of what we do could be perceived as a violation or could be
turned into a complaint that we’re violating somebody’s civil
rights based on public accommodations simply because we’re
trying to keep the jail inmates from having conflicts,” giving
the example of putting an inmate in a single cell “because
of their sexual orientation or perceived sexual orientation”
for the person’s own protection. Id. at 24:40. Although the
first concern could be applicable to other entities providing
services inside a prison, there is no indication that the rep-
resentative of the Oregon State Sheriffs’ Association was
concerned about claims involving only private companies,
rather than complaints against prisons or jails themselves.
And the second concern speaks more specifically to secu-
rity concerns that a prison or jail must manage; it does not
indicate an interest in excepting private service providers
from antidiscrimination laws. As a result, the specific rea-
sons offered for the exception are consistent with it being
intended to except local correction facilities as entities,
rather than as physical locations.8
When we focus, as we must, on the legislature’s defi-
nition of a “local correction facility” as “a jail or prison,” we
cannot conclude that defendant—a private entity that con-
tracts with a jail, but that is not a jail—is exempt from the
provisions of the Act. Based on the text of ORS 659A.400(2)(d),
as well as its legislative history, we conclude that defendant
does not qualify as a local correction facility.
CONCLUSION
We answer the Ninth Circuit’s certified question as
follows: A private contractor providing healthcare services
at a county jail is a “place of public accommodation” within
the meaning of ORS 659A.400 and can be subject to liability
under ORS 659A.142.
8
We have not been asked to consider circumstances in which a private con-
tractor violated ORS 659A.142 at the direction of a jail or in which the contrac-
tor’s actions might otherwise be attributable to the jail itself. Defendant’s only
claim to the coverage of ORS 659A.400(2)(d), at least at this stage of the case,
is based on the categorical, location-based argument laid out above, which we
reject. And our holding is limited to private contractors like defendant; we do not
address the hypothetical scenarios involving other county agencies posited by the
dissent. 369 Or at 764-65 (Garrett, J., dissenting).
Cite as 369 Or 735 (2022) 759
The certified question is answered.
GARRETT, J., dissenting.
The majority’s conclusion in this case would proba-
bly surprise the drafters of Oregon’s public accommodations
law (the “Act”), who likely had no intention to regulate activ-
ities within a jail. It would certainly surprise the drafters of
the 2013 amendments to the Act, who intended to remove
any doubt by expressly excluding correctional facilities from
the definition of a “place of public accommodation.” Like the
federal district courts that considered this question before
us, and consistently with how courts around the country
have construed similar state laws, I would conclude that the
Act does not apply in this context. I respectfully dissent.
In its current form, ORS 659A.400(1)(a) defines a
“place of public accommodation,” as relevant here, to mean
“[a]ny place or service offering to the public accommodations,
advantages, facilities or privileges whether in the nature of
goods, services, lodgings, amusements, transportation or
otherwise.” That definition has changed several times since
the Act was first enacted in 1953. See Or Laws 1953, ch 495,
§ 1. This court discussed the history of the Act in Schwenk
v. Boy Scouts of America, 275 Or 327, 331-34, 551 P2d 465
(1976), where we noted that the original definition included
“any hotel, motel or motor court, any place offering to the
public food or drink for consumption on the premises, or
any place offering to the public entertainment, recreation
or amusement.” Id. at 332 (citing Or Laws 1953, ch 495, § 2).
We further concluded from the legislative history that “the
intended purpose of the bill was to prevent ‘operators and
owners of businesses catering to the general public to subject
Negroes to oppression and humiliation [ ] * * *.’ ” Id. (quoting
Testimony, House Committee on State and Federal Affairs,
SB 169, Apr 7, 1953, Ex 1 (written statement of Ulysses G.
Plummer, Jr.) (emphasis in Schwenk)).
As the majority notes, the amendments to the defi-
nition of “place of public accommodation” over time have
broadened the types of establishments, goods, and services
that come within its scope. 369 Or at 747-48. At no time,
however, has the legislature indicated an intention to depart
760 Abraham v. Corizon Health, Inc.
from the animating premise that a place of public accommo-
dation is one “catering to the general public.” Id.
The concept of “catering to the general public,” or
soliciting business from the public at large, does not mean
that a place of public accommodation must seek to cater
to everyone. A place of public accommodation may be one
that effectively serves only a subset of “the public,” perhaps
because it provides a good or service that only certain people
want, or perhaps because of eligibility criteria that effec-
tively screen out some people (such as dress code require-
ments, admissions fees, or creditworthiness criteria), so long
as those criteria are not so subjective and selective that they
convert the business into a place that is “in its nature dis-
tinctly private.” ORS 659A.400(2)(e).
The majority opinion expends much energy proving
that point, but it is not really disputed in this case. Defendant
has directed us to the relevant cases, including those hold-
ing that a place of public accommodation can be one that in
reality serves only a subset of the “public,” and defendant
does not ask us to adopt a different principle. Rather, as I
understand defendant’s argument, the reason that the Act
is inapplicable here is not because inmates in a prison or a
jail cannot be considered members of “the public” in some
sense, but because a correctional facility simply is not one
where anything is “offer[ed] to the public” in the sense con-
templated by the Act, as we construed it in Schwenk. See
Schwenk, 275 Or at 332-33.
That argument is persuasive. The services provided
within a prison may be “offered” in the literal sense of that
word, and the recipients may be members of “the public”
under some literal uses of that word. Yet the phrase “offering
to the public,” within the unique context of the Act, has an evi-
dent historical meaning that is not captured by parsing the
phrase into its component words, finding some literal mean-
ings, and adding them back together. The Act, like others of
its kind, was meant to codify a rule with common-law roots:
that people should be free from discrimination in places that
the community at large may, in principle, choose to patron-
ize in the course of day-to-day commercial and social life.
Cite as 369 Or 735 (2022) 761
See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, 515 US 557, 571, 115 S Ct 2338, 132 L Ed 2d
487 (1995) (“At common law, innkeepers, smiths, and others
who ‘made profession of a public employment,’ were prohib-
ited from refusing, without good reason, to serve a customer.”
(Quoting Lane v. Cotton, 88 Eng Rep 1458, 1465 (KB 1701).)).
As we explained in Schwenk, the Act was passed “to prohibit
discrimination by business or commercial enterprises which
offer goods or services to the public.” 275 Or at 334 (empha-
sis in original). Not until the 2013 amendments, discussed
below, did the Act extend beyond that “commercial” focus.
Thus, it is unlikely that the drafters of the pre-2013 versions
of the Act imagined that it would apply in the context of
jails and prisons, which by their nature exclude the public at
large and exist to separate their populations from the ordi-
nary commercial life to which public accommodations laws
have always been addressed.
For those reasons, numerous other courts have con-
cluded that state public accommodations laws do not apply
in this context. E.g., State ex rel Naugles v. Mo. Comm’n on
Hum. Rts., B.A., 561 SW3d 48, 54 (Mo Ct App 2018) (“If any-
thing, [jails and prisons] are properly viewed as the antithe-
sis of a ‘place of public accommodation.’ ” (Emphasis in orig-
inal.)); Skaff v. W. Va. Hum. Rts. Comm’n, 191 W Va 161,
163-64, 444 SE2d 39, 41-42 (1994) (“[B]ecause members of
the general public are excluded, the inmates’ place of confine-
ment cannot be deemed a public accommodation.”); Blizzard
v. Floyd, 149 Pa Commw Ct 503, 506-07, 613 A2d 619, 621
(1992) (“[S]ince the purpose of a correctional institution is to
incarcerate persons convicted of crime or awaiting trial or
sentence, inmates do not enjoy the privilege of leaving the
facility at will. It is therefore clear that a state correctional
institution is not a public accommodation as defined by the
Act.”).
Thus, even before 2013, the answer to the question
posed by this case should have been that the Act does not
apply. Any doubt, however, is removed by the 2013 amend-
ments. See Or Laws 2013, ch 429, § 1. As the majority notes,
the legislature amended the Act in several ways, including
by adding two new categories to the definition of “place of
762 Abraham v. Corizon Health, Inc.
public accommodation.” 369 Or at 750-51. Those categories
are now codified in ORS 659A.400(1)(b) and (c) of the Act:
“(b) Any place that is open to the public and owned or
maintained by a public body, as defined in ORS 174.109,
regardless of whether the place is commercial in nature.
“(c) Any service to the public that is provided by a pub-
lic body, as defined in ORS 174.109, regardless of whether
the service is commercial in nature.”
Those provisions for the first time moved the Act away from
its focus on business and commercial activity by extending
the nondiscrimination requirements to certain public places
and services “regardless of whether [the place or the service]
is commercial in nature.” ORS 659A.400(1)(b), (c).
In the course of considering those amendments, the
legislature was asked to, and did, clarify that the expansion
of the Act would not extend to correctional facilities. It did
so by adding the following exceptions in ORS 659A.400(2):
“A place of public accommodation does not include:
“(a) A Department of Corrections institution as defined
in ORS 421.005.
“(b) A state hospital as defined in ORS 162.135.
“(c) A youth correction facility as defined in ORS
420.005.
“(d) A local correction facility or lockup as defined in
ORS 169.005.”
Or Laws 2013, ch 429, § 1. The legislative committee heard
some discussion of whether, even without the proposed
amendments, correctional facilities were excluded from the
definition of a place of public accommodation. A representa-
tive of the Bureau of Labor and Industries (BOLI) testified
as follows:
“First, are prisons places of public accommodation?
Maybe and maybe not. Those people who are detained
or housed in these facilities are not free to leave and to
come and to go and no one can choose to join them without
committing a crime for which they’re convicted. However,
these facilities also give tours and have visiting hours
open to the public. So, should they not be held to the same
Cite as 369 Or 735 (2022) 763
antidiscrimination standards treating all visitors in a non-
discriminatory way? BOLI would say yes. Should compli-
ance with civil rights and antidiscrimination laws cause a
huge risk to them? No. Agencies providing services using
federal dollars are generally subject to antidiscrimination
laws now. This wouldn’t change that.
“As to the inmates, there are also a couple of ways of
looking at this. Either they are not a place of public accom-
modation and open to the public and therefore wouldn’t
have any recourse, or, due to the fact that prison industries
have a commercial nature, they would already be covered
under current statute, but BOLI has never received a claim
for any of these under this statute.”
Audio Recording, Senate Committee on Judiciary, HB 2668,
May 9, 2013, at 19:01 (statement of Elizabeth Cushwa
(emphasis added)), https://olis.oregonlegislature.gov (accessed
May 24, 2022). Thus, it appears that, as of 2013, no one had
argued that the performance of core operations within a
prison or jail could be the subject of a public accommoda-
tions claim.
Nonetheless, acknowledging the potential uncer-
tainty on that point, law enforcement representatives
explained the need for amendments to clarify that the Act
does not apply to correctional facilities. The lead proponent,
the representative for the Oregon State Sheriffs’ Association,
testified as follows:
“There are also times where we take actions in order to
protect an inmate that they might be able to turn around
and suggest that we’re violating their civil rights. For
example, if we take an inmate, and because of their sexual
orientation, or perceived sexual orientation, we put them
into a cell by themselves, as opposed to putting them in a
cell where everybody else is two to a cell, we put them in
a cell by themselves for their own protection. Are we then
violating their civil rights, and would we be prohibited from
doing that?
“So, there are circumstances where some of what we do
could be perceived as a violation, or could be turned into a
complaint that we’re violating somebody’s civil rights based
on public accommodations, simply because we’re trying to
keep the jail inmates from having conflicts. And so, as BOLI
764 Abraham v. Corizon Health, Inc.
testified, we’re not sure what is and isn’t in or out when
it comes to public accommodations, we certainly would all
agree that tours and access to inmates for visitation would
be a public accommodation, but we are a little bit concerned
about, when you get into the inmate population, whether
they’re included in that or not, and whether there ought to
be some provision for allowing the corrections folks to do
what we need to do to keep our jails safe.”
Audio Recording, Senate Committee on Judiciary, HB 2668,
May 9, 2013, at 24:40 (statement of Darrell Fuller), https://
olis.oregonlegislature.gov (accessed May 24, 2022).
In short, the 2013 amendments were adopted to
make clear that state and local correctional facilities are
not “place[s] of public accommodation,” in recognition that
correctional facilities have unique characteristics and needs
that are incompatible with the requirements of the Act. As
was explained to the legislature (with no disagreement),
managing those institutions to promote the safety and well-
being of incarcerated persons and staff may sometimes
require segregation, isolation, or other treatment of persons
for reasons that would be unacceptable outside prison walls.
With that purpose in mind, it is difficult to see how
the majority’s analysis is consistent with legislative intent.
It is beyond dispute that the exception for correctional facili-
ties was enacted because of the nature of those environments,
yet the majority approaches this case as if what matters
is not the environment in which the medical services are
being provided, but by whom they are being provided. In the
majority’s view, defendant provides a service (medical care)
that, in the world at large, qualifies it as a place of public
accommodation, and the exception for correctional facilities
does not apply in this case because defendant is not a correc-
tional facility—it is a contractor acting under an arrange-
ment with Clackamas County, which owns the jail. 369 Or
at 758. Under that analysis, if the Clackamas County Jail
provides medical care, food, and other basic services directly,
the exception for correctional facilities applies, but if the jail
contracts with any other entity to provide those services, the
exception does not apply to that entity. Although the major-
ity purports to limit its holding to “private contractors,” its
logic contains no limiting principle that would protect other
Cite as 369 Or 735 (2022) 765
public entities. Suppose the jail arranges to provide food ser-
vices through a different county agency, or through another
public body altogether, such as a state agency. Suppose the
food services agency determines for safety reasons that it is
necessary to segregate inmates in the cafeteria on the basis
of, for example, sexual orientation. The majority’s reasoning
plainly raises the possibility that the food services agency
will be exposed to liability under the Act because it is not
the “local correction facility.”
The record offers no indication that the legislature
intended for the applicability of the exception to turn on
contracting arrangements, which have nothing to do with
the reason why correctional facilities were excluded. Again,
the legislature adopted the amendment because a policy
judgment that the nature of those environments, with the
emphasis on conflict avoidance and “keep[ing] our jails
safe,” makes them a poor fit for the requirements and pro-
tections of the Act. That judgment would not have turned
on whether a particular function is performed by the entity
that owns the prison or by another entity under contract, and
the majority identifies no plausible reason to think other-
wise.1 On the contrary, as the federal district court correctly
observed, the concern that “coverage would hinder prison
officials’ ability to manage inmates safely” has equal force
whether different jail services are “provided by the jail itself
or by a private entity.” Abraham v. Corizon Health, Inc., No
16-cv-01877, 2017 WL 6061009 at *4 (D Or Sept 8, 2017),
adopted, 2017 WL 6063066 (D Or Dec 7, 2017), vacated on
other grounds, 775 Fed Appx 301 (9th Cir 2019).2
Finally, to the extent the majority views this result
as compelled by the text, I disagree. The majority reasons
1
The majority misses the mark in suggesting that the concern expressed
in the legislative history “speaks more specifically to security concerns that a
prison or jail must manage; it does not indicate an interest in excepting private
service providers from antidiscrimination laws.” 369 Or at 758. What the major-
ity overlooks is that it could very well be a contractor that must address “security
concerns.” And, as noted above, the majority’s reasoning does not protect public
entity contractors, either.
2
Needless to say, construing the Act not to apply in this context would not
deprive incarcerated individuals of all remedies for discriminatory treatment or
deficient medical care. Other federal and state statutes, and state tort law, might
be applicable. Plaintiff in this case alleged several such claims.
766 Abraham v. Corizon Health, Inc.
that “services” cannot be covered by the exclusion in ORS
659A.400(2)(d) because that provision merely “excludes the
local correction facility itself from the definition of a place
of public accommodation.” 369 Or at 754. That analysis
assumes that the provision of services is not encompassed
by the term “local correction facility.” But that assumption
is unfounded in this context. Buildings do not discriminate;
people do. Thus, in specifically carving out a “local correc-
tion facility” from the coverage of an antidiscrimination
statute, the legislature could only have meant to refer to
the performance of tasks, functions, and services within the
facility walls. That is consistent with the ordinary meaning
of “facility”: “something (as a hospital, machinery, plumb-
ing) that is built, constructed, installed, or established to
perform some particular function or to serve or facilitate some
particular end.” Webster’s Third New Int’l Dictionary 812-13
(unabridged ed 2002) (emphasis added). Therefore, it is more
natural to understand the exception for a “local correction
facility” as applying to the building and the services pro-
vided within it, at least those services, including the deliv-
ery of food and medical care, that are inseparable from the
function of confining people for long periods of time.3
Because I believe the majority has answered the
certified question incorrectly, I respectfully dissent.
Balmer, J., joins in this dissenting opinion.
3
It makes no difference that, as the majority points out, “local correctional
facility” is specifically defined to mean a “jail or prison for the reception and
confinement of prisoners that is provided, maintained and operated by a county
or city.” ORS 169.005(4). The purpose of that definition seems to be to distin-
guish facilities that are “local” from those that are not. Moreover, the reference to
“reception and confinement of prisoners” reinforces the understanding of a “facil-
ity” as a building that exists “to perform some particular function.” Webster’s at
813. Thus, the point is the same: the performance of tasks and services intrinsic
to the function of “confinement of prisoners” is sensibly encompassed within the
meaning of “local correction facility” in ORS 659A.400(2)(d).