Chapter 10 - § 10.4 • LITIGATION OF A CADA CASE

• Jurisdiction: Colorado

§ 10.4 • LITIGATION OF A CADA CASE

§ 10.4.1—Burdens Of Proof And Production In CADA Discrimination Cases

CADA follows the federal civil rights statutes' model regarding burden of proof. Discrimination may be proved by direct evidence of discrimination (such as a verbal admission) or inferentially. An employee can establish a prima facie case by demonstrating that he or she is a member of a protected class, was otherwise qualified for his or her position, and that the employer fired the employee, failed to hire the employee, or took other adverse employment action against the employee in violation of CADA. Once an employee has made a prima facie showing of employment discrimination, the burden then shifts to the employer to articulate a legitimate business reason for the employment action. The employee retains the burden of proof, and must then show that the employer's articulated reason is not credible and is a pretext for discrimination. Colo. Civil Rights Comm'n v. Big O Tires, 940 P.2d 397, 399 (Colo. 1997).

A plaintiff may establish pretext by showing by substantial evidence that the employer's proffered reason for acting adversely towards him or her is unworthy of belief and that the termination was motivated, at least in part, by illegal discrimination. See Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). Some examples of cases worthy of jury evaluation on the issue of pretext include Texas Southland Corp. v. Hogue, 497 P.2d 1275 (Colo. App. 1972), where there was evidence that the employer did not actually learn of the facts supporting its claimed reason for termination until after the employee's termination, and St. Luke's Hospital v. Colorado Civil Rights Commission, 702 P.2d 758 (Colo. App. 1985), where the claimant, who was black, offered evidence that employees of other races committed offenses similar to those that the employer claimed led to the claimant's termination, yet those employees were not terminated.

A claimant may also survive summary judgment by introducing affirmative evidence of a discriminatory motive. Danville v. Reg'l Lab Corp., 292 F.3d 1246, 1249-50 (10th Cir. 2002). The plaintiff does not have the burden of proving that a defendant's proffered reasons were false, or that a discriminatory factor was the "sole" motivating factor in the employment decision. James v. Sears, Roebuck & Co., Inc., 21 F.3d 989, 992 (10th Cir. 1994). Instead, the employee must show by competent evidence that unlawful intent was a determining factor and that the decision violates the statute. Big O Tires, Inc., 940 P.2d at 399.

In disability discrimination cases, the burden of proof actually shifts to the employer after the employee's showing of a prima facie case, and the employer must show by a preponderance of the evidence that the disqualifying factors were justified under the business necessity defense or that there is no reasonable accommodation that the employer can make with regard to the handicap, that the handicap actually disqualifies the applicant from the job, and that the handicap has significant impact on the job. Colo. Civil Rights Comm'n v. N. Wash. Fire Prot. Dist., 772 P.2d 70, 80 (Colo. 1989).

§ 10.4.2—Case And Statutory Analysis — Prohibited Practices

Age Discrimination

Under CADA, age discrimination is permissible under the following circumstances:

1) The employee is under 40;
2) Where age is a bona fide occupational qualification reasonably necessary to an employer's normal business operation, or where the differentiation is based on reasonable factors other than age;
3) Where age discrimination is necessary to observe the terms of a plan or program that rewards employees based on years of service, age, or both, unless the plan "is a subterfuge to evade the purposes of [the Anti-Discrimination Act]"; or
4) "To compel the retirement of any employee who is sixty-five years of age or older and under seventy years of age and who, for the two-year period immediately before retirement, is employed in a bona fide executive or a high policy-making position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer and if such plan equals, in the aggregate, at least [$44,000]."

C.R.S. §§ 24-34-301 and -402(4)(a) through (c).

Claims of age discrimination are also affected by the Job Protection and Civil Rights Enforcement Act of 2013, which amended CADA's definition of "age." As of January 2015, "age" means a chronological age of at least 40 years and there is no longer a prohibition on claims filed by people 70 years old or older. Thus, anyone over 40 may pursue an age claim under CADA.

Federal age discrimination cases are used to interpret the CADA age discrimination provisions. Age discrimination must be established by inferential or direct evidence, and more than a mere belief that age discrimination occurred is necessary to establish pretext. George v. Ute Water Conservancy Dist., 950 P.2d 1195 (Colo. 1997).

Disability Discrimination

CADA prohibits discrimination against any person otherwise qualified because of a disability. The statute makes exceptions for situations in which there is no reasonable accommodation, the disability actually disqualifies the person from the job, and the disability has a significant impact on the job. C.R.S. § 24-34-402(1)(a). An employer may make an agreement with an employee for a part-time schedule (up to 20 hours per week) as part of a therapeutic training program lasting no more than 18 months. C.R.S. § 24-34-402(3). CADA's disability discrimination provisions are "substantially equivalent" to the federal Americans with Disabilities Act, and these statutes should be interpreted consistently whenever possible. Commission Rule 60.1(C).

Under CADA, "'[d]isability' has the same meaning as set forth in the federal 'Americans with Disabilities Act of 1990.'" C.R.S. § 24-34-301(2.5). Thus, a person is disabled if that person: (1) has a physical or mental impairment that substantially limits one or more of such person's major life activities, (2) has a record of such impairment, or (3) is regarded as having such an impairment. 42 U.S.C. § 12102(1). Major life activities are functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, touching, learning, and working. Commission Rule 60.1(D)(1)(c).

A disability substantially limits performance of a major life activity only if it prevents or severely restricts an individual from performing that activity. "Substantial" suggests that the impairment must be of "ample and considerable amounts," and of a permanent or long-term nature. Tesmer v. Colo. High Sch. Activities Ass'n, 140 P.3d 249, 254 (Colo. App. 2006) (finding Attention Deficit Disorder was not a substantially limiting condition where the claimant was still able to progress in his high school education).

An employer must make a reasonable accommodation for a disabled person who is "otherwise qualified" for the position he or she holds or desires. C.R.S. § 24-34-402. "Otherwise qualified" means that an individual can perform the essential functions of the position he or she holds or desires with reasonable accommodation. An employee must commence the dialogue to determine what is a reasonable accommodation by notifying the employer of the employee's disability and requesting an accommodation to enable the employee to perform the essential functions of the position he or she holds or desires. Cmty. Hosp. v. Fail, 969 P.2d 667, 673 (Colo. 1998). An employee may only claim disability discrimination if he or she can establish that the employer knew or reasonably should have known of the disability and of the need for accommodation. Phelps v. Field...