Chapter 22 - § 22.3 • FEDERAL AND STATE ANTI-DISCRIMINATION LAWS
| Jurisdiction | Colorado |
§ 22.3.1-Federal Anti-Discrimination Laws
Absent an agreement stating otherwise, the relationship between an employer and employee in Colorado is presumed to be at-will.30 Either party to an employment at-will relationship may terminate the employment for any cause or no cause, except for an illegal reason. An illegal reason would include terminating an employee based on the employee's membership in a class protected by federal or state anti-discrimination laws.
Federal anti-discrimination laws include:
• Title VII of the Civil Rights Act of 1964,31 which prohibits discrimination in employment based on an individual's race, color, religion, sex, or national origin.
• Section 1981,32 which prohibits discrimination based on race or ethnicity in the making, performance, and termination of contracts, including employment contracts.
• Age Discrimination in Employment Act of1967,33 which prohibits discrimination against persons age 40 and older.
• Americans with Disabilities Act of 1990,34 which, among other things, prohibits employment discrimination based on disability.
• Equal Pay Act of 1963,35 which prohibits employers from paying different rates of pay based on gender to employees performing the same work.
• Genetic Information Nondiscrimination Act of 2008,36 which prohibits the use of genetic information in health insurance and employment decisions.
• Fair Pay Act of 2009,37 which extends the 180-day statute of limitations for filing Equal Pay Act claims by resetting the statute with each new paycheck affected by the employer's allegedly discriminatory practice.
Employers should note that there are two theories of liability under most federal discrimination laws: disparate treatment and disparate impact. Disparate treatment arises due to intentional discrimination when an employee is treated adversely because of his or her protected status.38 Disparate impact, on the other hand, arises when an employer's neutral policy places a greater burden on, or adversely affects, a protected class.39 As a result, it is important to implement workplace policies that treat employees even handedly and do not disproportionately affect protected class members.
Furthermore, most federal anti-discrimination laws prohibit retaliation against an employee or applicant because he or she has opposed any unlawful practice covered by the statute or because he or she has made a charge, testified, or otherwise participated in an investigation, proceeding, or hearing related to a discriminatory practice.40 In construing the anti-retaliation provisions of Title VII, the U.S. Supreme Court in Burlington Northern & Santa Fe Railway v. White41 held that to state a cognizable claim of retaliation, at least under Title VII of the Civil Rights Act of 1984, an employee need only show "that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination."42 In so holding, the Supreme Court rejected a standard for retaliation claims requiring an employee to show an "ultimate employment" decision - i.e., termination - to support a retaliation claim and instead adopted a standard requiring an action sufficiently detrimental to the employee that it would likely dissuade a reasonable worker from making or supporting a charge of discrimination.43 In other words, while trivial harms to the employee will not trigger employer liability under the anti-retaliation provisions of Title VII, significant harms - even short of discharge - may trigger unlawful retaliation liability. Whether this new standard for retaliation claims under federal statutes will be followed outside of Title VII remains to be seen.
§ 22.3.2-Colorado Anti-Discrimination Act
Colorado's anti-discrimination statute mirrors the protections provided by federal law in most respects. The Colorado Anti-Discrimination Act (CADA),44 however, is broader than federal anti-discrimination laws. Employers covered under the CADA include the State of Colorado, all political subdivisions, school districts, employment agencies, labor organizations, apprenticeship training programs, and "every other person employing persons within the state."45 Accordingly, the CADA applies to employers with two or more employees.
Moreover, the CADA includes three protections not found in federal anti-discrimination laws. First, with limited exceptions, employers may not discharge an employee, or refuse to hire a person, solely on the basis that the person is married to or plans to marry another employee.46 The exceptions are if one spouse has a supervisory role over the other; if one spouse is entrusted with monies received or handled by the other spouse; or if one spouse has access to the employer's confidential information, including payroll and personnel records.47
Second, the CADA makes it a discriminatory practice for employers to terminate an employee due to that employee's involvement in any off-duty, off-premises lawful activity, unless the restriction relates to a bona fide occupational requirement or is reasonably and rationally related to job performance or is necessary to avoid a conflict of interest.48 While initially conceived to protect smokers, outspoken advocates of unpopular causes and persons who failed drug tests due to their off-duty use of alcohol or prescription drugs have used the statute to challenge their discharge based on lawful off-duty conduct.49 Colorado courts recently grappled with the lawful off-duty provision's application to an employee's lawful use of medical marijuana under Colorado law. In Coats v. Dish Network, the Colorado Supreme Court held that the statute does not prohibit employers from discharging employees who choose to use marijuana for medical purposes off-duty and away from their employers' places of business, even when there is no evidence such use affected job performance or that the employee was otherwise impaired while at work.50 The court held that marijuana remains unlawful under federal law, and, as a result, an employee cannot rely on the lawful off-duty conduct statute as a basis for consumption in violation of an employer's zero-tolerance drug policy.51
Third, in 2007 the CADA was amended to prohibit workplace discrimination against gays, lesbians, bisexuals, and transgendered individuals.52 In passing the new law, Colorado joined a growing number of states that protect against job bias based on sexual orientation and gender identity.
A 2016 amendment to the CADA requires Colorado employers to provide reasonable accommodations for health conditions related to pregnancy or the physical recovery from childbirth unless the accommodation would impose an undue hardship on the business.53 While a similar federal statute already exists, the CADA is broader and covers any employer with two or more employees. The amendment also prohibits employers from retaliating against a pregnant woman who requests accommodation, requires the employer to provide notice of rights under the Act, allows the employer to require a doctor's note, and requires the employer to engage in an interactive process with the employee regarding the requested accommodation.
In 2013, the Colorado General Assembly overhauled the CADA.54 After amendment, plaintiffs pursuing claims under the CADA may recover both economic and non-economic damages from employers, including businesses with fewer than 15 employees, who are found liable for engaging in workplace discrimination.55 Most of the major federal laws prohibiting workplace discrimination have statutory limits in that they only apply where the employer has at least either 15 or 20 employees.56 However, the CADA applies to every employer with two or more employees.57
Although the CADA has long prohibited employment discrimination by employers with too few employees to be covered by federal laws, up until the recent amendment, the CADA had not allowed jury trials, awards of attorney fees, or awards of compensatory and punitive damages.58 Notably, the addition of compensatory and punitive damages to the CADA makes claims of sexual orientation discrimination in Colorado much more attractive because federal law does not cover sexual orientation claims.
§ 22.3.3-Avoiding Discrimination Claims in Hiring
Discrimination issues arise frequently in the hiring context. Employers must be mindful to focus their hiring questions on a person's ability to do the job and avoid discussions on protected class characteristics. The following sections summarize some of the more common issues.
Age or Date of Birth Discrimination
Normally, pre-employment questions about a prospective employee's age or date of birth are inappropriate under the Age Discrimination in Employment Act and the CADA. However, it is permissible to ask an applicant to disclose his or her age if the applicant appears to be under 18 years of age and age is a bona fide occupational qualification. In addition, if an employer needs an employee's date of birth for administrative reasons (such as for pension purposes), this information may be obtained after the person is hired.
Race, Religion, and National Origin Discrimination
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