Chapter 10 - § 10.5 • DISCRIMINATION ON ACCOUNT OF LEGAL OFF-DUTY ACTIVITIES

• Jurisdiction: Colorado

§ 10.5 • DISCRIMINATION ON ACCOUNT OF LEGAL OFF-DUTY ACTIVITIES

§ 10.5.1—Overview

In 1990, Colorado enacted the Lawful Off-Duty Activities Statute, which generally protects employees from being terminated for lawful behavior that occurs away from the employer's premises and outside of working hours. C.R.S. § 24-34-402.5(1). A termination based upon an employee's lawful off-duty activities is an unlawful employment practice even if the employer has not adopted a policy restricting employees' off-duty activities. Gwin v. Chesrown Chevrolet, 931 P.2d 466, 470 (Colo. App. 1996). As discussed in § 10.5.3, defenses are available to employers under the statute.

Unlike other sections of CADA, an employee may not file a charge with the Commission based on violation of this section. The sole recourse for violation is a civil action for damages in Colorado district court. A two-year statute of limitations applies to lawsuits brought under this section. Galvan v. Spanish Peaks Reg'l Health Center, 98 P.3d 949, 951 (Colo. App. 2004).

Until the CADA amendments that took effect in January 2015, the damages under this section of CADA were more generous than under the others. Employees may collect all wages and benefits that would have been due up to and including the date of judgment and, where the employer has more than 15 employees, there is a mandatory attorney fee award for prevailing plaintiffs. C.R.S. § 24-34-402.5(2)(a).

§ 10.5.2—Prohibited Practices

The Lawful Off-Duty Activities Statute was originally enacted with the goal of protecting cigarette smokers. However, the broad language of the statute permits application to a wide variety of conduct, including: sexual orientation, Robert C. Ozer, P.C. v. Borquez, 923 P.2d 166 (Colo. App. 1996), rev'd, 940 P.2d 371 (Colo. 1997) (suggesting lawful activities statute could provide cause of action for sexual orientation discrimination, but deciding on different grounds); unpopular political beliefs, Slater v. King Soopers, Inc., 809 F. Supp. 809 (D. Colo. 1992) (involving terminated employee affiliated with the KKK); and seeking a refund for a motivational seminar endorsed by and partially paid for by the employer, Gwin v. Chesrown Chevrolet, 931 P.2d 466 (Colo. App. 1996).

Employees have unsuccessfully sought protection from the Lawful Off-Duty Activities Statute with respect to marijuana use. However, employees may argue that there are open questions of law because the federal Controlled Substances Act (CSA), which...