Mitchell v. BOLI

520 May 13, 2026 No. 405

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

Todd MITCHELL,

individually, under ORS 659A.030(1)(g),

Petitioner,

and

FREHOO, INC.,

dba Stars Cabaret & Steak House, et. al.,

Respondents Below.

v.

BUREAU OF LABOR AND INDUSTRIES OF THE

STATE OF OREGON

Respondent.

Oregon Bureau of Labor and Industries

3716;

A183925

Argued and submitted September 22, 2025.

Angela Ferrer argued the cause for petitioner. Also on

the briefs were Andrew Altschul, Courtney Angeli, and

Buchanan Angeli Altschul & Sullivan, LLP.

Jona J. Maukonen, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Dan Rayfield,

Attorney General, and Benjamin Gutman, Solicitor General.

Before Aoyagi, Presiding Judge, Kamins, Judge, and

Pagán, Judge.

KAMINS, J.

Reversed and remanded.

Cite as 349 Or App 520 (2026) 521

522 Mitchell v. BOLI

KAMINS, J.

Petitioner appeals from a Bureau of Labor and

Industries (BOLI) final order determining that petitioner,

owner of Frehoo, Inc. (Frehoo), aided and abetted sex-

ual harassment under former ORS 659A.030(1)(g) (2021),

renumbered as ORS 659A.030(1)(h) (2025). Petitioner raises

two assignments of error. First, he argues that the board

erred by determining that he aided and abetted a statutory

violation without requiring that he had actual knowledge of

the underlying violation. Second, he contends that the board

exceeded its authority in holding petitioner jointly and sev-

erally liable for the full damage award. We reverse on the

first assignment of error, which obviates the need to address

the second.

I. BACKGROUND

This case concerns an adult entertainment estab-

lishment operated by Frehoo, with shares owned by three

primary individual owners, including petitioner. Frehoo

hired AP21—a 15-year-old victim of child sex trafficking—

as a dancer. During her time working for Frehoo, customers

touched her sexually. A bartender working at the club recog-

nized AP2 from a missing persons photo and reported that

to a Frehoo manager and petitioner. Petitioner directed the

club’s general manager to contact law enforcement immedi-

ately. Following an investigation and a proposed order issued

by an administrative law judge, BOLI issued a final order

determining Frehoo was liable for subjecting AP2 to sex dis-

crimination via the creation of a hostile working environ-

ment in violation of ORS 659A.030(1)(b) and that three own-

ers, including petitioner, were liable for aiding and abetting

in violation of former ORS 659A.030(g) (2021). Frehoo, Inc. v.

BOLI, 319 Or App 548, 550, 510 P3d 888 (2022), rev den, 370

Or 789 (2023). Respondents appealed, and we reversed after

determining that BOLI applied a legal standard to impose

aider-and-abettor liability that was not found in the statute.

Id. at 564-66. On remand, BOLI issued an amended final

1

Consistent with past cases, we refer to complainant as “AP,” which stands

for “aggrieved person.” Frehoo, Inc. v. BOLI, 319 Or App 548, 550 n 1, 510 P3d 888

(2022), rev den, 370 Or 789 (2023). The original complaint referred to two aggrieved

persons—AP1 and AP2, but only conduct related to AP2 remains at issue. Id.

Cite as 349 Or App 520 (2026) 523

order, again determining that Frehoo was liable for subjecting

AP2 to sex discrimination in violation of ORS 659A.030(1)(b).

BOLI also determined that, applying the correct statutory

language, petitioner, but not the other two owners, was lia-

ble for aiding and abetting sexual harassment in violation

of former ORS 659A.030(1)(g) (2021) because petitioner was

responsible for enforcing Frehoo’s sexual harassment pol-

icies and failed to do so, and he should have known that

failing to enforce the policies would likely result in sexual

harassment. Petitioner appeals from that final order.

In his first assignment of error, petitioner contends

that BOLI erred in determining that he aided and abetted

unlawful sexual harassment under former ORS 659A.030(1)

(g) (2021) because it applied the incorrect legal standard and

lacked substantial evidence to support its factual findings.

Former ORS 659A.030(1)(g) (2021) provides that it

is unlawful “[f]or any person, whether an employer or an

employee, to aid, abet, incite, compel or coerce the doing of

any of the acts forbidden under this chapter or to attempt

to do so.” Petitioner argues that BOLI incorrectly applied a

negligence standard, holding petitioner liable for aiding and

abetting because he “should have known” sexual harassment

was likely to occur, rather than requiring that he “knew” of

any sexual harassment. Petitioner raises a question of stat-

utory interpretation: whether BOLI correctly interpreted

the statute’s use of “aid, abet, incite, compel, or coerce” to

require that a respondent need not have actual knowledge

of the underlying conduct.

II. STANDARD OF REVIEW

We review agency interpretations of law for legal

error and their factual findings for substantial evidence.

ORS 183.482(8)(a), (c). When reviewing an agency’s inter-

pretation of a statutory provision, we first consider what

standard of review, and therefore level of deference, to apply

based on whether the term at issue is exact, inexact, or dele-

gative. Coast Security Mortgage Corp. v. Real Estate Agency,

331 Or 348, 353, 15 P3d 29 (2000). “Exact terms” express

a precise meaning, and as such, their application involves

only agency factfinding, which we review for substantial

524 Mitchell v. BOLI

evidence. Id. “Inexact terms” are “less precise” but still

embody “a complete expression of legislative meaning.” Id.

at 354. “ ‘Delegative terms’ express incomplete legislative

meaning that the agency is authorized to complete,” requir-

ing the agency to make a policy determination. Id. The court

reviews the agency’s interpretation of delegative terms to

determine if it is “within the range of discretion allowed by

the more general policy of the statute.” Id. While we defer to

an agency’s interpretation of delegative terms to the extent

it is within the range of discretion allowed, an agency’s

interpretation of nondelegative terms is not entitled to def-

erence. OR-OSHA v. CBI Services, Inc., 356 Or 577, 585, 341

P3d 701 (2014).

“Aid, abet, incite, compel or coerce” are inexact

terms. Although they are not defined in the statute and

thus are open to various interpretations, they do not require

the agency to make a legislative policy determination.

See Blachana, LLC v. BOLI, 354 Or 676, 687, 318 P3d 735

(2014) (considering a term that “embodies a complete [but

imprecise] legislative policy” and is “capable of more than

one meaning” inexact). Therefore, we review the agency’s

interpretation to determine if it is consistent with legisla-

tive intent and, in that regard, the agency’s interpretation

of the statute is not entitled to deference. Id.; Coast Security

Mortgage Corp., 331 Or at 354.

III. STATUTORY CONSTRUCTION

In construing an inexact statutory term, we exam-

ine the text and context of the statute and, where relevant,

the legislative history. State v. Gaines, 346 Or 160, 164, 206

P3d 1042 (2009). We begin by considering how the terms are

defined and then consider prior case law, preexisting com-

mon law, and comparable statutes.

A. Text

First, we examine the text. The text provides that it

is an unlawful employment practice “[f]or any person, whether

an employer or an employee, to aid, abet, incite, compel or

coerce the doing of any of the acts forbidden under this chap-

ter or to attempt to do so.” Former ORS 659A.030(1)(g) (2021).

Where, as here, there are no relevant statutory definitions,

Cite as 349 Or App 520 (2026) 525

we look to the text’s plain meaning, according to contempo-

raneous dictionaries, unless the terms at issue are terms of

art drawn from a specialized trade or field. State v. Gonzalez-

Valenzuela, 358 Or 451, 461, 365 P3d 116 (2015); Comcast

Corp. v. Dept. of Rev., 356 Or 282, 296 n 7, 337 P3d 768 (2014).

Where a term is a legal term of art, we use contemporaneous

legal dictionaries to determine the intended meaning. Brown

v. GlaxoSmithKline, LLC, 372 Or 225, 231-32, 548 P3d 817

(2024). The terms at issue, “aid,” “abet,” “incite,” “compel,” and

“coerce,” are terms of common usage that are sometimes used

as legal terms of art. As such, we consult both contemporane-

ous ordinary usage and legal dictionaries to understand the

legislature’s intended meaning.2 Id.

Addressing the text, BOLI argues that (1) “aid” does

not require knowledge of the underlying conduct, (2) to the

extent “abet” requires knowledge, constructive knowledge

is sufficient, and (3) “incite,” “coerce,” and “compel” do not

require knowledge. Because the definitions of “aid,” “incite,”

“coerce,” and “compel” indicate that knowledge of the under-

lying conduct is required and BOLI does not suggest that

petitioner had notice sufficient to constitute constructive

knowledge, we disagree.

Definitions from both ordinary and legal dictionar-

ies indicate that a person must be aware of the underlying

conduct in order to aid, abet, incite, compel or coerce it.

First, “aid” is defined as “to further the interests

or designs of (another) by assistance or cooperation; to

give support, help, or succor to; assist.” Webster’s New Int’l

Dictionary 53 (unabridged ed 1952). “Aid” is “distinguished

from its synonym ‘encourage,’ the difference being that the

former connotes active support and assistance.” Black’s Law

Dictionary 91 (4th ed 1951). “Active support and assistance”

involves acting with intent, or at least knowledge, of the

underlying conduct; indeed, to connote “assistance” without

intent or knowledge would usually require the use of a clari-

fying “modifying adverb, such as ‘unintentionally’ or ‘unwit-

tingly.’ ” State v. Morgan, 361 Or 47, 54–55, 388 P3d 1085

(2017) (determining plain and legal dictionary definition

2

The legislature enacted the provision at issue in 1949. Or Laws 1949,

ch 221, § 5. As such, we look to dictionary definitions close in time to 1949.

526 Mitchell v. BOLI

of “aid” including “help,” “support,” and “assist” connotes

intent to facilitate a particular outcome); see also Allison v.

Dolich, 321 Or App 721, 726, 518 P3d 591 (2022) (“One who

aids or abets [under former ORS 659A.030(g) (2021)] is one

who assists another to commit an act.”).

BOLI contends that comparison of the definitions of

“aid” and “abet” support the conclusion that “aid” does not

require knowledge. BOLI relies on Black’s Law Dictionary

for the proposition that, “strictly speaking, [‘aid’] does not

imply guilty knowledge or felonious intent, whereas the

word ‘abet’ includes knowledge of the wrongful purpose

and counsel and encouragement in the commission of the

crime.” Black’s at 17. Although Black’s may offer a “strictly

speaking” clarification, it also provides that “aid” and “abet”

are “nearly synonymous terms as generally used,” and they

are generally treated interchangeably when used together,

as in “aid and abet.” Id. And when used together, “aid and

abet” “[i]mplies knowledge” of underlying unlawful conduct.

Id. Consideration of the full definition and common usage,

both of which support the conclusion that “aiding” some-

one requires knowledge, indicates that the legislature did

not intend the “strictly speaking” definition. See Gonzalez-

Valenzuela, 358 Or at 461 (explaining that a term’s use in

a particular context “may dictate applying one definition

rather than another, if the dictionary contains multiple defi-

nitions for a relevant term”).

BOLI further contends that to the extent “abet”

requires knowledge, “constructive knowledge” is sufficient.

Relying on Black’s, BOLI argues that the definition of

“knowledge” includes constructive knowledge, that is, “[k]

nowledge [that] may be imputed, when the means of knowl-

edge exists, [is] known and accessible to the party, and [is]

capable of communicating positive information.” Black’s

at 1013. However, that definition also refers to “notice or

knowledge sufficient to excite attention and put [a] person

on guard and call for inquiry.” Id. at 1012; see also Cameron

v. Edgemont Investment Co., 136 Or 385, 397, 299 P 698

(1931) (“[N]otice of acts and circumstances which would put

a man of ordinary prudence and intelligence upon inquiry

is equivalent in the eyes of the law to knowledge of all the

Cite as 349 Or App 520 (2026) 527

facts a reasonably diligent inquiry would disclose.”). BOLI

does not acknowledge the similarities between its interpre-

tation of “constructive knowledge” and typical negligence,

but regardless, BOLI has identified nothing in this record

that put petitioner on any kind of notice of the violation

such that knowledge would be imputed as a function of law.

See Mark v. ODFW, 191 Or App 563, 576, 84 P3d 155 (2004)

(“Constructive knowledge exists when a person is aware of

‘information as would lead a prudent man to believe that

the fact existed, and that if followed by inquiry must bring

knowledge of the fact home to him.’ ” (Quoting Tucker v.

Constable, 16 Or 407, 409, 19 P 13 (1888).)).

The definitions of “incite,” “compel,” and “coerce”

similarly connote knowledge. “Incite” means “[t]o move to

action; to stir up; to spur or urge on,” and the legal defini-

tion is “nearly synonymous with ‘abet,’ ” which, as discussed

above, explicitly requires knowledge. Webster’s at 1257;

Black’s at 905. Similarly, the definitions of both “compel”

and “coerce” include “to force,” “to drive or urge with force,”

and “to compel to compliance,” all of which indicate acting

knowingly. Webster’s at 519, 544; Black’s at 324, 353.

BOLI contends, however, that the definitions of

incite, coerce, and compel do not require knowledge of the

underlying conduct because they do not “suggest[ ]” or “men-

tion” knowledge. However, definitions can connote a men-

tal state without explicitly providing one, and, as noted, we

disagree that the definitions do not suggest that knowledge

was required. See Morgan, 361 Or at 55 (explaining that

words used in definitions can imply, and therefore require, a

mental state without explicitly including one).

B. Context

That interpretation—that knowledge is required

to aid another to commit sex discrimination under ORS

659A.030—is consistent with prior case law, preexisting

common law, and other statutory context.

1. Preexisting common law

Preexisting common law can provide helpful clues

as to what the legislature intended, see Gonzalez-Valenzuela,

528 Mitchell v. BOLI

358 Or at 469 (including “preexisting common law” among

context useful in discerning legislative intent), and we have

recently discussed the common law requirements to impose

tort liability for aiding and abetting. To determine the “min-

imum standard that, as a matter of Oregon common law,

an aiding and abetting claim must meet,” we have relied on

the three theories of liability contained in the Restatement

(Second) of Torts. Riveria v. Perlo Construction, LLC, 336 Or

App 307, 322-24, 561 P3d 1144 (2024) (evaluating the plead-

ing requirements for a violation of former ORS 659A.030(1)

(g) (2021)).

Those theories allow for liability for assisting

another’s tortious conduct in three ways: (a) a person “does a

tortious act in concert with the other or pursuant to a com-

mon design with him,” (b) a person “knows that the other’s

conduct constitutes a breach of duty and gives substantial

assistance or encouragement to the other so to conduct

himself,” or (c) a person “gives substantial assistance to the

other in accomplishing a tortious result and his own con-

duct, separately considered, constitutes a breach of duty to

the third person.” Restatement (Second) of Torts § 876 (1979);

see Riveria, 336 Or App at 322 (“[S]ection 876 of Restatement

(Second) of Torts (1979) reflects Oregon common law.”).

As BOLI does not contend, nor did BOLI find,

that petitioner acted in concert with another or separately

breached a duty to AP2, the second theory of liability in the

Restatement is the most analogous. And that theory explicitly

requires that the aider or abettor be aware of the underlying

tortious conduct in order to aid and abet its commission.

Contrary to BOLI’s contentions,3 a comparison to

tort common law is appropriate here. Indeed, discrimination

cases under ORS Chapter 659A have been compared to and

analyzed under tort law in other contexts. See Griffin v. Tri-

Met, 318 Or 500, 506-07, 870 P2d 808 (1994) (explaining that

3

At oral argument, BOLI contended that the Restatement cannot reflect the

intent of the legislature that enacted ORS 659A.030 because it post-dates the

statute’s enactment. However, Restatement section 876 reflects long-held Oregon

common law principles. Granewich v. Harding, 329 Or 47, 54, 985 P2d 788 (1999)

(observing that each of the three theories in section 876 “already is reflected in

existing Oregon case law governing the liability of persons acting in concert” and

adopting that section “breaks no new ground”).

Cite as 349 Or App 520 (2026) 529

the statutory duty of an employer not to discriminate under

ORS 659A is a legal duty, the breach of which fits within the

statutory definition of a tort under the Oregon Tort Claims

Act); see also Meyer v. 4-D Insulation Co., Inc., 60 Or App

70, 74, 652 P3d 852 (1982) (including racial discrimination

among types of intentional torts). And common law tort

aider-and-abettor liability is consistent with the conclusion

that the legislature intended to require awareness of the

underlying conduct.

2. Criminal statutes

Finally, BOLI supports its argument through ref-

erence to criminal statutes. BOLI argues that because the

catch-all criminal aid-and-abet statute includes an express

element of a heightened mental statement, the absence of

an express heightened mental state in the employment dis-

crimination statute suggests that the legislature intended

not to require one. See ORS 161.155 (requiring a separate

element of “intent to promote or facilitate the commission

of the crime”). Assuming arguendo that separately enacted

criminal statutes could be considered context,4 in contrast

to BOLI’s contention, the legislature has required a height-

ened mental state for criminal accomplice liability without

expressly providing for one. Assault in the third degree and

robbery in the second degree both include provisions allow-

ing for liability if the actor is “aided by another person actu-

ally present,” which has been construed to mean that the

aider is liable for assault or robbery if they acted with the

intent to bring about the underlying conduct. Morgan, 361

Or at 57; see State v. Phillips, 354 Or 598, 610, 317 P3d 236

(2012) (looking to criminal common-law context to deter-

mine that the term “aided” required intent). In reaching

that conclusion, the court rejected the argument that the

legislature’s explicit inclusion of a mental state in another

accomplice liability statute meant that the legislature did

not intend a heightened mental state where it did not include

one. Morgan, 361 Or at 56.

4

A statute’s context can, in some situations, include other statues on the

same subject. State v. Cortes, 374 Or 461, 472, 580 P3d 839 (2025); see also Hon.

Jack L. Landau, Oregon Statutory Construction, 97 Or L Rev 583, 640 (2019)

(observing “that there is no bright line between related statutes that may be

referred to as ‘context’ and unrelated statutes that may not”).

530 Mitchell v. BOLI

In sum, use of the terms in similar tort common

law and criminal statutory contexts indicates that the leg-

islature intended to require at least knowing assistance

to establish aider-and-abettor liability under former ORS

659A.030(1)(g) (2021). In light of that text and context,5 we

determine that the legislature intended to require knowl-

edge for liability under former ORS 659A.030(g) (2021).6

IV. APPLICATION

We next apply that standard to the facts in this

case. The record does not support, nor does BOLI argue, that

petitioner knowingly aided and abetted sexual harassment.

In BOLI’s original final order, BOLI found that “[t]here is no

evidence that the individual Respondents actively ‘help[ed]’

or ‘assist[ed]’ in the sexual harassment of AP2” and that peti-

tioner “did not see AP2 dance or witness her being present

on Frehoo’s premises.” In BOLI’s amended final order, BOLI

found that petitioner’s testimony that he was not involved in

AP2’s hiring and that he had never seen her before was cred-

ible. Further, petitioner took action to address the harass-

ment as soon as he learned of it. Cf. Harris v. Pameco Corp.,

170 Or App 164, 177-78,12 P3d 524 (2000) (an employer who

has knowledge of harassing behavior and takes immediate

remedial action is not liable under ORS 659A.030).

BOLI instead relied on petitioner’s “significant

experience in the adult entertainment industry” and that

5

The parties do not provide any legislative history, and the legislative his-

tory we reviewed does not clearly address the legislature’s intention regarding

mental state.

6

Because the underlying violation—creation of a hostile work environment

by an employer—requires only that the employer “should have known” of the

harassment, BOLI argues that more should not be required to find aid-and-abet

liability for the creation of a hostile work environment. See H. K. v. Spine Surgery

Center of Eugene, 305 Or App 606, 614, 470 P3d 403 (2020), rev den, 367 Or 826

(2021) (distinguishing negligence standard for vicarious liability of employer,

requiring that the employer knew or should have known of the harassment, from

standard for direct liability, which does not). However, generally, in this context,

the mental state of the aider and abettor, not the underlying actor, is what mat-

ters. Olsen v. Deschutes County, 204 Or App 7, 26, 127 P3d 655, rev den, 341

Or 80 (2006) (section 876 knowledge requirement for aider-and-abettor liabil-

ity “applies whether or not [the underlying tortfeasor] knows his act is tortious”

(internal quotation marks omitted)); see also Moore v. Portland Public Schools,

328 Or App 391, 405, 537 P3d 544 (2023) (allowing for liability for aiding and

assisting intentional tort of battery based on defendant’s “knowledge that tor-

tious conduct would occur”).

Cite as 349 Or App 520 (2026) 531

“[h]e was involved in developing policies for Frehoo,” even

though “[h]e delegated the supervision of Frehoo’s daily

operations * * *.” BOLI determined that petitioner’s respon-

sibility for ensuring Frehoo’s policies were conveyed to staff

and enforced and his failure to act to ensure enforcement

established liability. However, petitioner’s responsibil-

ity is not sufficient to impose liability under former ORS

659A.030(g) (2021). From that record, there is not substan-

tial evidence to support that petitioner aided and abetted

sexual harassment.

Reversed and remanded.