CADA: The Intersection of LGBT Civil Rights and Religious Freedom, 0117 COBJ, Vol. 46 No. 1 Pg. 31
| Author | J. Ryann Peyton , Arash Jahanian John M. McHugh, Ariel B. DeFazio, J. |
Specialty Bar Series-LGBT
J. Ryann Peyton , Arash Jahanian John M. McHugh, Ariel B. DeFazio, J.
CADA: The Intersection of LGBT Civil Rights and Religious Freedom
This article discusses the effects of the Colorado Anti-Discrimination Act on the LGBT community, including case law construing the act and potential areas for amending the act. It also covers national trends in LGBT discrimination law.
This article provides an overview of the Colorado Anti-Discrimination Act (CADA) and the aspects of that law that significantly impact the lesbian, gay bisexual, and transgender (LGBT) community. Specifically, the article addresses CADA’s housing public accommodation, advertising and employment sections and the way these sections changed with the passage of SB 07-025, which modified CADA to include sexual orientation and gender identity as protected classes.
The article also explains recent litigation over the application of CADA, including Craig v. Masterpiece Cakeshop, Inc.,1 which examined whether a bakery can refuse to provide a wedding cake to a same-sex couple based on its owner’s religious objections. National trends in the balance of LGBT anti-discrimination law and religious freedom initiatives and future amendments to Colorado’s anti-discrimination statutes are also considered.
Overview of CADA
CADA was originally passed in 19572 and has been amended several times to increase its coverage and remedies. CADA prohibits discrimination against individuals in protected classes in the areas of employment, housing, and public accommodations. The list of protected classes includes age (at least 40 years),3 color, disability, marital status, national orign or ancestry, race, religion or creed, sex, and retaliation for engaging in protected activity (complaining about treatment made unlawful under CADA).[4]
In 2007, CADA was amended5 to expand the list of protected classes to include sexual orientation and gender identity.6 As a compromise for this expansion, religious safe harbors, which are described in more detail below, were also created. Colorado is in the minority of states in offering this comprehensive coverage against LGBT discrimination. Currently, only 20 states and the District of Columbia prohibit discrimination in housing and employment based on sexual orientation and gender identity, and just 18 states and D.C. prohibit discrimination in public accommodations on the same bases.7
The regulations promulgated by the Colorado Civil Rights Commission (Commission) pursuant to CADA require employers, business owners, and other entities to which CADA applies to “take all steps necessary to prevent discrimination, including harassment, from occurring,” including “expressing strong disapproval, promulgating and distributing an anti-discrimination policy, training, developing appropriate sanctions, informing affected individuals of their right to raise and how to raise the issue of discrimination, and developing methods to sensitize all concerned.”8
Housing
CADA protects individuals from discrimination in housing, which includes, among other things, refusal to rent, unequal terms and conditions, discriminatory financing, failure to provide reasonable accommodations or modification for a person with a disability, refusal to sell, and retaliation against individuals who have exercised their fair housing rights.9 CADA’s housing provisions explicitly allow a “religious or denominational institution” to give preference to members of that religion or even limit housing to those members.[10] Individuals who believe that they have been subjected to housing discrimination have one year from the last date of discriminatory harm to file a charge of discrimination with the Colorado Civil Rights Division (CCRD).[11]
Public Accommodations
Under CADA, a place of public accommodation is defined as “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages or accommodations to the public.”12 The statute includes a lengthy list of examples from retail stores, restaurants, bars, hotels and motels, recreation areas, barber shops, and campsites, to clinics, hospitals, cemeteries, educational institutions, and any public buildings or facilities.13 Places used principally for religious purposes such as churches, synagogues, and mosques are explicitly exempt from coverage.14 Discriminatory practices include refusing, withholding from, or denying to an individual or a group “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.”15 Representatives of any place of public accommodation are also prohibited from publishing or displaying any discriminatory communications or advertisements.16 Charges of discrimination must be filed with the CCRD within 60 days of the alleged discriminatory act.17
Where restrooms, locker rooms, dressing rooms, and dormitories may be gender-segregated, the regulations mandate that covered entities allow individuals to use the facility that is consistent with their gender identity.18 In 2014, the CCRD ruled that 6-year-old transgender girl Coy Mathis must be allowed to use the girls’ bathroom at her elementary school.19
Employment
Although CADA mirrors many of the same protections for employees as federal anti-discrimination laws like Title VII of the Civil Rights Act of 1964,20 the Age Discrimination in Employment Act of 1967,21 and Title I of the Americans with Disabilities Act of 1990,22 it covers a class of employers who are exempt from these federal laws: those with fewer than 15 employees in the case of discrimination based on color, disability, national origin, race, religion, and sex; and those with fewer than 20 employees, in the case of age discrimination.23 CADA also explicitly prohibits discrimination against individuals based on actual or perceived sexual orientation and gender identity, whereas courts are still in flux as to whether Title VII’s prohibition of sex discrimination provides the same protection.24 Amendments to CADA in 2013 made its remedies consistent with those under federal antidiscrimination laws.25 CADA is now an even more valuable tool for employees seeking redress for discrimination based on their actual or perceived LGBT status, particularly those who are employed at small companies.
In addition to the protected classes identified above, CADA protects: workers who are married to or plan to marry a coworker if the employer has 26 or more employees;26 employees who inquire about, disclose, compare, or otherwise discuss their wages;27 and victims of domestic abuse, sexual assault, or stalking who request and take up to three working days of leave in any 12-month period to obtain legal assistance or medical or mental health counseling for themselves or their children to address issues arising from the qualifying crimes.28 CADA also makes it unlawful to terminate an employee for participating in lawful activities outside of work,29 which includes participation in a same-sex romantic relationship.30
Under CADA, discriminatory practices in employment include discharging, demoting, harassing, refusing to hire or promote, or discriminating in matters of compensation, terms, conditions, or privileges of employment because of an individual’s membership in a protected class.31 Employees have six months to file a charge of discrimination with the CCRD following the occurrence of a discriminatory employment practice.32
CADA requires employees who have been the victims of harassment, including harassment based on sexual orientation or gender identity, to file a complaint with an “appropriate authority” at their workplace to allow the employer to take remedial action.33 Regardless of whether a complaint is lodged, the Commission’s regulations recognize that an employer is responsible for harassment in the workplace where it “knows or should have known of the conduct.”34 An employer may also be responsible for the creation of a hostile work environment by non-employees.35
The regulations include specific examples of behaviors considered unlawful harassment against LGBT employees, including “[a]sking unwelcome personal questions about an individual’s sexual orientation,” disclosing an employee’s sexual orientation to others, “[u]sing offensive names or terminology regarding an individual’s sexual orientation,” and “[d]eliberately misusing an individual’s preferred name, form of address, or gender-related pronoun.”36 Although employers may set standards of dress or grooming that “serve a reasonable business or institutional purpose,” they may not require an employee “to dress or groom in a manner inconsistent with that individual’s gender identity.”37 In addition, if an employer grants medical leave to its employees, it must “treat requests for leave to address healthcare needs related to an individual’s sexual orientation”—which again includes gender identity by definition—“in the same manner as requests for other medical conditions.”38
National Trends in Anti-Discrimination Law
Current national trends in anti-discrimination law fall into two categories: anti-discrimination measures that protect LGBT individuals, and “anti-anti-discrimination” laws that weaken or avert such measures.
Protective Anti-Discrimination Measures
Because attempts to enact a federal law to include sexual orientation and gender identity in the list of classes protected under the 1964 Civil Rights Act have failed, the growth of LGBT civil rights has been dependent on states to independently...
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