Colorado Law of Retaliatory Discharge and Handicap Discrimination
| Jurisdiction | Colorado,United States |
| Citation | Vol. 10 No. 1992 Pg. 2227 |
| Pages | 2227 |
| Publication year | 1992 |
1992, October, Pg. 2227. Colorado Law of Retaliatory Discharge And Handicap Discrimination
Consider the following hypothetical: An employer wishes to fire an employee because he no longer performs his duties satisfactorily, possibly due to a work-related injury for which the employee has a pending workers' compensation claim. The employer is concerned that termination of the employee might give rise to a lawsuit for retaliatory discharge or discrimination against the handicapped. The employer and its counsel must determine what law governs this situation in Colorado.
This article discusses Colorado law regarding a claim for retaliatory discharge resulting from the filing of a workers' compensation claim. It also discusses an employer's duties under Colorado state law to an employee who has been physically handicapped, either in the course of employment or otherwise, and is thereafter unable to perform duties associated with employment.
It has long been the rule in Colorado that a discharged employee has no recourse against his or her employer in the absence of a fixed-term contract, unlawful discrimination or a specific constitutional right.(fn1) Colorado generally does not recognize common law tort actions for negligent or wrongful termination. However, the state does recognize claims sounding in contract for terminations which are in violation of specific procedures contained within the employer's personnel manual or the employer's specific policies.(fn2)
(The Americans With Disabilities Act will comprehensively revise the approach Colorado takes to the employer's duties as they are otherwise discussed below. The changes are too new to evaluate totally in the context of the existing common law, but will be treated in a future article by Mr. Godfrey.)
The majority of Colorado courts state the employment-at-will doctrine as follows:
An employee who was hired for an indefinite period of time is an "at will employee," whose employment may be terminated by either party without cause and without notice, and "whose termination does not give rise to a cause of action."(fn3)
Public Policy Exception. The first Colorado case to recognize the potential existence of a cause of action for retaliatory discharge was Lampe v. Presbyterian Medical Center,(fn5) in which a nurse was terminated for failing to comply with hospital guidelines which she argued jeopardized the care of her patients. The plaintiff argued that certain statutes regulating the nursing profession contained legislative declaration of policy to safeguard against improper nursing care. She further argued that because she was discharged in retaliation for her refusal to comply with hospital guidelines which contravened this policy, the Court of Appeals should expand Colorado tort law to recognize a claim for retaliatory discharge based on public policy. The court rejected this argument.
Workers' Compensation and Jury Duty: Protected Statutory Rights. Although the Lampe court rejected the plaintiff's argument, it observed that other jurisdictions have held that terminations in retaliation for the exercise of statutory rights or obligations state a valid cause of action. The Lampe court did not reject these decisions as being unauthoritative, but distinguished them on their facts, implying that under different circumstances, Colorado might be willing to adopt the "modern trend" and recognize a claim for retaliatory termination.
Two differing factual situations were presented in the case law distinguished by the Lampe court: the discharge of an employee for reporting for jury duty(fn6) and the discharge for the filing of a workers' compensation claim.
Discharge in retaliation for filing a workers' compensation case was first recognized in Frampton v. Central Indiana Gas Co.,(fn7) which was cited and distinguished in Lampe. Colorado's observance of this decision may constitute the first seed from which grew the crop of litigation arising from discharge of an
employee in retaliation for filing a workers' compensation claim.
Both of these factual situations from Lampe were later cited by the U.S. District Court for the District of Colorado as recognized exceptions to the terminable-at-will rule in Brooks v. Trans World Airlines, Inc.(fn8) However, they were not presented in Brooks nor discussed in detail.(fn9) Subsequent case law has expanded somewhat on the concept that an employer incurs liability to an employee by discharging that employee in violation of the state's public policy if the policy involved is reflected in a statute that creates a specific right or duty.(fn10)
The first reported Colorado decision to recognize an employee's right to assert a claim for retaliatory discharge after filing a workers' compensation claim was Lathrop v. Entenmann's, Inc..(fn11) The Lathrop court held that the right to benefits contained...
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