Background
BOLI had found Frehoo, Inc., doing business as Stars Cabaret & Steak House, liable for subjecting an employee to sex discrimination. It also found Mitchell and other individual owners liable for aiding and abetting sexual harassment. In an earlier appeal, the Oregon Court of Appeals affirmed Frehoo’s liability but reversed and remanded as to the individual owners because BOLI had applied an aider-and-abettor standard not found in the statute.
On remand, BOLI applied the correct statutory language and found Mitchell—but not the other two owners—liable under former ORS 659A.030(1)(g). BOLI reasoned that Mitchell was responsible for enforcing Frehoo’s sexual-harassment policies, failed to do so, and should have known that the failure would likely result in sexual harassment. After the Court of Appeals issued a May 13, 2026, opinion concerning that order, BOLI sought reconsideration to correct the opinion’s description of the procedural history.
The Court’s Holding
The Court of Appeals allowed reconsideration because its prior description could unintentionally imply that BOLI had reconsidered Frehoo’s liability on remand. The court clarified that it had already affirmed Frehoo’s liability in the first appeal and that the remand concerned the individual owners’ aider-and-abettor liability.
The court replaced the disputed procedural-history passage with language accurately describing the earlier affirmance, the limited remand, and BOLI’s subsequent determination that Mitchell alone among the individual owners was liable. It also replaced two references to BOLI as “the board” with “BOLI.” The court otherwise adhered to its former opinion as modified.
Key Takeaways
- The first appeal affirmed Frehoo’s liability and reversed only the aider-and-abettor rulings against the individual owners.
- BOLI’s amended order on remand did not reconsider Frehoo’s liability; it applied the correct statutory standard to the individual owners.
- The reconsideration decision corrected the procedural narrative and terminology without changing the prior opinion’s substantive result.
Why It Matters
The decision ensures that the appellate record accurately reflects the scope of the earlier remand. That distinction matters because it prevents readers from mistakenly concluding that Frehoo’s underlying liability remained open after the first appeal.
For practitioners, the opinion also illustrates that reconsideration may be used to correct language that could create a material misunderstanding of a case’s procedural posture, even when the court does not alter its substantive disposition.