Oregon Ruling Sharpens ‘No Two Bites’ Clause Common in Faculty Contracts

An Oregon state appeals court has held that Portland State University did not illegally retaliate against a faculty member by responding to her decision to file gender-discrimination complaints with outside agencies by refusing to process a grievance she had submitted. It is common for faculty contracts to have “no two bites” provisions barring employees from pursuing grievances through both the agreed-upon grievance process and complaints filed with some agency or court. A state labor board, however, had sided with Portland State’s chapter of the American Association of University Professors when it filed an unfair labor practices complaint accusing the college of illegal retaliation for refusing to enter into a grievance process with the faculty member after she submitted formal discrimination complaints elsewhere. In its ruling overturning the labor board’s decision, the state appeals court said the college had not engaged in conduct that could be called retaliation in simply trying to consolidate efforts to resolve the dispute into a single proceeding.