Under various state and federal laws, employers are prohibited from discriminating against individuals on the basis of:
- race (includes hair texture, hair type or protective hairstyle)
- national origin or ancestry
- marital status
- lawful off-duty activities
- sexual orientation
- gender identity
- gender expression
- marital status
- pregnancy, childbirth or related conditions
- lawful off-duty activities.
Finally, employers may not retaliate – that is, take any steps against – an employee for alleging discrimination by the employer.
Because an employer can be held liable under each applicable statute, it is important to know which law protects which protected class from discrimination. The primary state statute that prohibits discrimination in employment is the Colorado Anti-Discrimination Act (CADA). The CADA prohibits employment discrimination based on:
- national origin or ancestry
- sexual orientation
- marital status
- lawful off-duty activities
Unlike the federal anti-discrimination statutes, CADA applies to all employers within the state, regardless of the number of employees. Thus, even an employer with a single employee is covered by CADA. However, under CADA, the definition of employer does not include religious organizations that are not supported by public taxes or borrowing. One other difference under CADA is the potential for individual liability under specific language that prohibits both employers and employees from aiding, abetting or attempting to commit discriminatory or unfair labor practices.
CADA was drafted to mirror federal anti-discrimination laws in many ways. Additionally, federal case law is frequently used to interpret CADA and decide new questions. The federal statutes that prohibit discrimination in employment against individuals based on certain protected class memberships include:
- Title VII of the Civil Rights Act (Title VII) , as amended , which prohibits employment discrimination based on race, color, religion, sex and national origin. It covers public and private employers with 15 or more employees.
- The Pregnancy Discrimination Act (PDA), which amended Title VII to prohibit discrimination based on pregnancy, childbirth, or related medical conditions. It covers employers with 15 or more employees.
- The Equal Pay Act (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination. It applies to virtually all employers, regardless of the number of employees.
- The Age Discrimination in Employment Act (ADEA), which prohibits discrimination in employment against individuals who are 40 years of age or older. The ADEA applies to employers with 20 or more employees.
- Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA), which prohibit employment discrimination against qualified individuals with disabilities in the private sector and in state and local governments (see Disabilities and reasonable accommodations).
- Sections 501 and 505 of the Rehabilitation Act, which prohibit discrimination against qualified individuals with disabilities who work for the federal government.
- Title II of the Genetic Information Nondiscrimination Act (GINA), which prohibits employment discrimination based on genetic information about an applicant, employee, or former employee.
- The Civil Rights Act of 1991, which among other things, increased the monetary damages in cases of intentional employment discrimination under Title VII, the EPA and the ADA.
- The National Labor Relations Act (NLRA), which among other things, prohibits employers from discriminating against employees for discussing among themselves the terms and conditions of their employment.
- The Employee Retirement Income Security Act (ERISA), which prohibits having retirement plans and “welfare benefit plans,” that is, health, disability insurance, etc. (and even severance plans) that are discriminatory and also prohibits action or inaction by the employer taken for the purpose of interfering with the attainment of any right to which such participant may become entitled under a plan.
Illegal discrimination practices
An employer is prohibited from considering an employee’s protected class status when making the following employment decisions:
- compensation, assignment or classification of employees
- transfer, layoff or recall
- disciplinary actions (which under Colorado law means any direct or indirect form of discipline or penalty, including, but not limited to, dismissal, demotion, transfer, reassignment, suspension, corrective action, reprimand, admonishment, unsatisfactory or below standard performance evaluation, reduction in force (RIF), or withholding of work, or the threat of any such discipline or penalty)
- use of company facilities
- training and apprenticeship programs
- pay, retirement plans and disability leave
- other terms, conditions or privileges of employment.
Other practices that are considered discriminatory include:
- harassment on the basis of one of the protected categories listed previously
- retaliation against an individual for filing a charge of discrimination, participating in an investigation or opposing discriminatory practices
- employment decisions based on stereotypes or assumptions about the abilities, traits or performance of individuals of a certain protected category
- denying employment opportunities to a person because of marriage to, or association with an individual of a particular race, religion, national origin or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic or religious group.
Both Title VII and the CADA make it unlawful for an employer to discriminate in employment based on an individual’s race or color. Race discrimination means treating someone less favorably because of the individual’s race or color. An employer may not refuse to hire, promote, terminate, or harass, segregate, or classify employees on the basis of race.
As discussed previously, employees may file claims based on race discrimination under Title VII and the CADA. Employers should be aware that individuals may also file claims of race discrimination under Section 1981 of the Civil Rights Act of 1866 (Section 1981). Section 1981 is often invoked by employees who are seeking to avoid Title VII’s procedural requirements, and in some cases, to gain access to additional damages. Both Title VII and Section 1981 prohibit discriminatory employment decisions based on race or stereotypes often associated with race. In addition, both laws protect against racial harassment and retaliation.
Title VII vs. Section 1981
- Unlike Title VII, which protects employees against discrimination based on race, color, sex, national origin, and religion, Section 1981 only protects against race discrimination. However, “racial” discrimination is defined broadly to include identifiable classes of persons based on their ancestry or ethnic characteristics.
- Unlike Title VII, which covers only those employers with 15 or more employees, Section 1981 covers all private employers, regardless of the number of employees.
- The administrative prerequisites to filing a suit in federal court under Title VII do not apply to Section 1981 claims. Thus, an employee with a Section 1981 claim does not have to first file a charge with the EEOC, nor must he/she wait for his/her right-to-sue-letter.
- Unlike Title VII, which requires a charge of discrimination to be filed with the EEOC within 180 days of the alleged discriminatory event, the courts have determined that Section 1981 generally permits claims brought within a maximum of four years of the alleged discriminatory conduct, depending on the circumstances.
- While Title VII allows claims under either disparate treatment or disparate impact, Section 1981 is appropriate only for cases in which the employer is charged with intentional discrimination (disparate treatment).
- Unlike Title VII, Section 1981 does not provide a statutory cap to its punitive damage awards.
- Individual supervisors may be named under Section 1981 claims, but not Title VII claims, if they personally harassed or discriminated against the employee.
Title VII and the CADA prohibit discrimination in employment based on an individual’s national origin or ancestry. National origin discrimination means treating someone less favorably because he/she comes from a particular place, because of his/her ethnicity or accent, or because it is believed that he/she has a particular ethnic background. Title VII also protects employees who associate with persons of a particular national origin. Therefore, according to EEOC guidelines, Title VII’s protections cover:
- marriage with a member of a particular national origin
- use of a spouse’s name that is associated with a particular national origin
- membership in schools, churches, temples or mosques generally used by persons of a particular national origin
- membership in an organization that promotes the interests of national groups.
The Colorado Civil Rights Commission has stated that national origin discrimination will be enforced to the full force of law in order to eliminate such discrimination. Specifically, the Commission will closely examine:
- the use of tests in the English language where the individual tested came from circumstances where English was not that person’s first language or mother tongue, and where English language skill is not a requirement of the work to be performed
- denial of equal opportunity to persons married to or associated with persons of a specific national origin
- denial of equal opportunity because of attendance at schools or churches commonly utilized by persons of a given national origin
- denial of equal opportunity because their name or that of their spouse reflects a certain national origin
- denial of equal opportunity to persons who as a class of persons tend to fall outside national norms for height and weight where height and weight specifications are not necessary for the performance of the work involved.
Discrimination in employment on the basis of citizenship against a lawfully immigrated alien residing in, and with the legal right to work in, the United States is a violation of the law when it is intended to or has the effect of discriminating against persons of a particular national origin.
The Immigration Reform and Control Act (IRCA) prohibits employers that have from four to 14 employees, and are therefore not covered by Title VII, from discriminating on the basis of national origin against U.S. citizens and nationals and non-citizens with work authorization. It also prohibits citizenship status discrimination and discriminatory documentary practices by all employers who have four or more employees. IRCA’s non-discrimination requirements are enforced by the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC), Civil Rights Division, at the U.S. Department of Justice.
In 1996, Congress authorized a pilot project that is now the U.S. Customs and Immigration Service’s (USCIS’s) E-Verify program. Though most Colorado employers (excepting federal contractors) are not required to use E-Verify, if employers do choose to use it, they must avoid discriminating using E-Verify. An employer could violate the anti-discrimination provision in its use of E-Verify by, for instance:
- running only employees who identify themselves as non-U.S. citizens on the Form I-9; requiring that non-U.S. citizens show certain documentation for E-Verify (other than requiring that any List B document presented include a photo)
- prescreening those who look or sound “foreign” using E-Verify. E-Verify rules do not permit this practice.
Religion and creed
Definition of religion
Religion is defined in Title VII to include “all aspects of religious observance and practice, as well as belief.” The EEOC’s regulations define “religious practice” as moral or ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views. The law protects all aspects of the religion, its observances, and practices. The Colorado Civil Rights Commission defines creed and religion as a religious, moral, or ethical belief that is sincerely held and includes all aspects of religious observance and practice. Courts also define religion broadly as a sincerely held religious belief, regardless of whether such belief is approved or required by an established church or other religious institution.
Title VII and the CADA prohibit discrimination in employment based on an individual’s religion.
Under Title VII and the CADA, religious discrimination includes an employer’s failure to accommodate an employee’s religious beliefs, thereby forcing the employee to choose between his/her religion and his/her job, where accommodations can be made without undue hardship on the conduct of the employer’s business. Therefore, the prohibition against religious discrimination in reality also creates an affirmative duty for an employer to reasonably accommodate an employee’s religious beliefs and practices. Under CADA, undue hardship may exist, for instance, where another employee cannot perform the employee’s work with similar qualifications during the period of absence of the observer. The employer must demonstrate that an undue hardship renders the required accommodations to the religious needs of the employee unreasonable.
Burden of proof
A plaintiff who claims he/she was discriminated against by his or her employer’s failure to accommodate him/her must first establish three elements:
- he or she has a sincere belief that compliance with a work requirement is contrary to his/her religious faith
- he or she informs his or her employer of this conflict
- he or she is discharged or disciplined for failing to comply with the work requirement.
If the plaintiff establishes these three elements, the employer must then prove that it attempted to accommodate the plaintiff’s religious beliefs or was unable to provide an accommodation without undue hardship. Thus, the issue in most religious discrimination claims is whether the employer’s accommodation is reasonable.
The extent of the duty to accommodate
It is well settled that an employer, in order to fulfill its duty to accommodate, does not have to provide an employee with the “best accommodation” or the accommodation preferred or proposed by the employee. In order to defend against a “failure to accommodate” claim, an employer simply must show that it offered a reasonable accommodation to the employee.
An employer does not have to implement any accommodation at all, if doing so would result in an undue hardship. The Supreme Court has defined “undue hardship” as any accommodation that would impose more than a minimal cost for the employer to implement. For instance, an employer probably does not have to train another employee at a significant cost in order to cover for an employee that cannot work on a particular day because of his or her observed Sabbath. Whether an accommodation is reasonable depends on the facts of each case.
Example 1 - An employee requests to take off work for Yom Kippur, which occurs one day each year and may fall on a weekday. Courts will likely require an employer to accommodate him or her.
Example 2 - An employee claims that his or her religion requires him or her to be off work every Monday and Tuesday. Courts are not likely to force an employer to accommodate this employee.
Title VII and the CADA prohibit employment decisions based on sex (that is, gender) or sexual stereotypes. Other issues included under the broad umbrella of “sex discrimination” include:
- compensation discrimination
- sexual orientation and transgender status
Under Title VII, an employer may not make employment decisions based on sex, nor may it implement employment practices that help foster sexual stereotypes. Selecting candidates of a particular gender based on the preferences of co-workers is also illegal. The sole exception to this prohibition is the bona fide occupational qualification (BFOQ) defense.
Bona-fide occupational qualification
A BFOQ is a quality or attribute (here, sex) that an employer may consider when making decisions, even though it may be considered discriminatory in other contexts. For instance, a manufacturer of men’s clothing might be able to lawfully argue that no woman can be hired as one of its models. The fact that an applicant is a female could disqualify her from consideration, as being male is a BFOQ for the position. Prison guards and restroom attendants are other examples.
In order to establish a BFOQ defense, the employer must demonstrate:
Direct relationship between an employee’s sex and his or her ability to perform the job - An employer may demonstrate a direct relationship by showing that all, or substantially all, individuals of one sex would be unable to safely and efficiently perform the duties of a particular position. However, courts will not uphold a rule that is based on sexual stereotypes. For instance, an employer could not implement a policy excluding women from a position that regularly required lifting over 30 pounds, because this policy is based on the stereotype that all women are inherently weak.
Essence of business - Discrimination based on sex is lawful only when the essence of the business operation would be undermined if the employer is forced to hire members of both sexes.
For instance, Hooters restaurant attempted to exclude all male servers, claiming that male servers did not fit within Hooters’ chosen entertainment theme. The court disagreed, finding that Hooters marketed itself as a family restaurant instead of an entertainment business, and therefore had no right to exclude men from service positions. In other words, a server did not have to be female in order to facilitate the essence of Hooters’ business as a family restaurant.
No reasonable alternative - Although not universally required, many courts require that an employer must also be able to demonstrate that no less restrictive alternative is available other than the exclusion of a gender from the position.
- Example - A nursing home primarily servicing female patients rejected the application of a male nursing assistant because of his sex. The medical center argued that it was entitled to reject male applicants in order to protect its patients’ privacy rights. The court rejected this contention, in part because there was a less restrictive alternative available to the medical center (for instance, allowing the male nursing assistant to work with male patients or non-objecting female patients).
Factors to consider
Factors that courts consider when determining whether a sex-based discriminatory practice is lawful are:
Safety of others - The safety of others, not the safety of the employee, has traditionally been the most successful factor in justifying discriminatory practices.
Privacy - Courts occasionally uphold sex-based employment policies that are motivated by privacy interests of third parties. For instance, courts traditionally have allowed health club owners who refuse to hire male personal trainers for their female-only clubs to show that sex is a BFOQ. Under this theory, club owners argue that hiring males for a position that often requires close, intimate contact with the female clients would be an intrusion into the clients’ privacy.
Customer preference - Normally, customer preference is not sufficient to support a BFOQ defense.
An employee can sue for compensation discrimination under the EPA, which prohibits an employer from paying men and women who perform substantially equal work in the same workplace different rates of compensation due to gender. Title VII and the ADA also prohibit an employer from paying an individual a lesser rate of pay based on any protected class covered by the respective acts.
Colorado Wage Equality Regardless of Sex Act
The Colorado Wage Equality Regardless of Sex Act also prohibits discrimination in the amount or rate of wages or salary to be paid an employee on the basis of sex. This law applies to every employer and employee in Colorado. There is no private right of action under this law, but an employee can lodge a complaint within one year of an alleged violation, and the director of the Colorado Division of Labor may hold a hearing on and determine such complaint. Potential remedies include back pay and fines.
Colorado Equal Pay for Equal Work Act
The Colorado Equal Pay for Equal Work Act, amends the Colorado Wage Equality Regardless of Sex Act and imposes additional prohibitions and obligations. The act bans private employers from asking job applicants for their salary histories, and also specifically prohibits employers from justifying differences in pay by pointing to differences in prior salary. Employers can legally justify pay discrepancies if they prove salary differentials are not based on gender, but instead, wholly attributable to merit, quality of work, training or experience, work history, seniority, geographic location or even travel requirements.
The Colorado Equal Pay for Equal Work Act contains robust notice requirements, including a requirement that employers include the salary or salary range for all positions in job postings. Additionally, when promotion opportunities become available within a company, those opportunities must be posted or otherwise made known to all employees.
The act also imposes new affirmative recordkeeping obligations on employers, requiring that records of job descriptions and wage rate history for an employee be maintained for the duration of the employee’s employment, plus two years.
The act contains a good-faith exception stating courts should not award damages to employees if an employer has reasonable grounds for believing that it was not in violation of the law. A plaintiff that succeeds in bringing a claim under the act will be entitled to recover actual economic damages, which may include up to three years of back pay and any other compensation or benefits he or she should have received but for the discrimination. Additionally, a successful plaintiff can recover liquidated damages equal to the economic damages, as well as equitable relief and attorneys’ fees.
Lilly Ledbetter Fair Pay Act
The Lilly Ledbetter Fair Pay Act (Ledbetter Act) expanded the definition of a “violation” under Title VII to include more than the initial pay decision. Under this act, a violation occurs with each payment of wages, benefits, or other compensation that are the result of a discriminatory pay decision. Therefore, for instance, an employee’s claim for compensation discrimination under Title VII would be timely so long as it is filed within 180 days of his/her last paycheck – even if the actual discriminatory pay decision occurred many years in the past.
This law raises the stakes for compensation discrimination claims. More than ever, an employer should ensure that its employees are compensated in a consistent manner. If they are not, the employer should be sure that it has proper documentation of the legitimate non-discriminatory reasons for any differential treatment.
Federal contractor obligations
On April 10, 2014, President Obama signed two documents that imposed additional requirements on federal contractors with regards to equal pay. First, he amended Executive Order 11246 to include a non-retaliation provision. Under the revised Order, federal contractors are prohibited from retaliating against any employee or applicant because the individual “inquired about, discussed, or disclosed” his/her (own) compensation to another employee or applicant. The Order does not affect an employer's ability to prohibit employees from disclosing the compensation of co-workers.
Sex-based compensation discrimination
The EPA prohibits sex-based wage discrimination between men and women in the same establishment who perform jobs that require substantially equal skill, effort, and responsibility under similar working conditions. Under the EPA, the term “wages” encompasses all forms of compensation. Therefore, a differential in fringe benefits may serve as the basis for a claim, even when all other compensation is equal.
In order to prevail, a plaintiff must be able to identify an employee of the opposite sex who is within the same establishment and receives higher compensation for performing equal work. Courts are clear that they will not compare wages paid to employees from separate places of business unless the plaintiff can show that the employer’s operations are integrated within the separate facilities and that the administration of these facilities is centralized.
When determining whether two jobs are equal, it is the content of the job that is determinative, not the formal job description. Therefore, courts will consider the following factors:
Skill - Courts will consider factors such as education, ability, experience, and training. Employers should note that courts focus on what skills are required to do the job, not what skills an individual employee happens to possess. In other words, a difference in pay between two security guards cannot be justified by the fact that one has a master’s degree in classical music because that type of degree is not required for the security guard position.
Effort - The EEOC defines effort as the amount of physical or mental exertion needed to perform the job. Therefore, under this definition, two workers on a factory assembly line could hold the same job title, but if one worker’s job duties require more manual labor, the employer would be justified in paying him more. In addition, courts will also consider differences in the volume of work performed.
Responsibility - The EEOC defines responsibility as the degree of accountability inherent in the job. For instance, a retail supervisor who is responsible for balancing registers and locking the store at the end of the day may be paid more than a sales associate, even if the two individuals perform much of the same duties.
Working conditions - Working conditions refer to “surroundings” (elements regularly encountered by a worker) and “hazards” (the physical hazards regularly encountered, their frequency. and the severity of injury they can cause). Therefore, an employer is justified in paying more to an employee if his/her position exposes him/her to greater hazardous conditions.
An employer may defend against a compensation claim by proving that the difference in pay rate is based on:
an established seniority system
an established merit system
a system that measures earnings by quantity of quality of production
any factor other than sex
Employers should note that in correcting a pay differential, no employee’s pay might be reduced. Instead, the pay of the lower-paid employee should be increased.
The Pregnancy Discrimination Act (PDA) amended Title VII to prohibit discrimination based on pregnancy, childbirth, or related medical conditions. The PDA and Colorado employment regulations prohibit employers from discriminating against women who are disabled due to pregnancy or childbirth. Employers must treat women who are pregnant or affected by pregnancy-related conditions in the same manner as other applicants or employees with similar abilities or limitations. Under Colorado regulations, women with pregnancy-related disabilities must be treated the same as workers with other disabilities regarding leaves of absence, accrual of benefits, reinstatement, and payment under any health, insurance, or sick leave plan. The PDA contains comparable provisions.
What is protected?
The PDA prohibits discrimination because of pregnancy, pregnancy-related conditions, or childbirth. In 2016, Colorado amended CADA by enacting the Pregnant Workers Fairness Act. In addition, the ADA, as amended, prohibits discrimination against otherwise qualified women who are affected by temporary disabilities wholly or partly caused by pregnancy, miscarriage, abortion, childbirth, or recovery from childbirth. Pregnancy and childbirth are protected under the CADA; to the extent they cause someone to have a disability.
- An employer cannot refuse to hire someone because she is pregnant or has a pregnancy-related condition.
- An employer cannot require a pregnant woman to submit to special procedures in order to determine whether she can perform her job duties unless the employer requires all employees to submit to those procedures.
- An employer must treat a pregnant woman, who cannot perform her job due to a medical condition related to her pregnancy, the same way it treats all temporarily disabled employees.
- An employer may not keep a pregnant woman from working or prohibit a woman from returning to work after giving birth.
- Pregnant employees cannot be made to pay a larger health insurance deductible than other employees.
In addition, under the Pregnant Workers Fairness Act, employers are required to accommodate medical conditions and limitations from pregnancy that may not separately qualify as disabilities under the ADA, as amended. Employers are required to engage in a timely, good-faith, and interactive process with employees (or applicants) experiencing health conditions related to pregnancy or the physical recovery form childbirth to determine effective reasonable accommodations. The Pregnant Workers Fairness Act also prohibits employers from taking adverse actions or denying employment opportunities to applicants or employees who request or use an accommodation.
Right to voluntary leave
The PDA requires that pregnant women be given at least the same benefits and leave time as any other employee. For instance, if an employer grants short-term disability to all employees, it must allow a pregnant woman sufficient leave to recover from the childbirth. Likewise, if an employer allows employees to take leave for personal or family reasons, it must grant this same leave to pregnant employees.
The PDA prohibits employers from discriminating against pregnancy in their health insurance programs. Under the PDA, an employer must:
- provide the same pregnancy benefits to unmarried employees that it provides to married employees
- reimburse pregnancy-related expenses under the same method used to reimburse other medical conditions
- provide the same level of health insurance for spouses of male employees as it does for spouses of female employees.
Protection from hazardous work conditions
An employer faces a unique dilemma when employing individuals to work under hazardous work conditions. If it forbids a pregnant woman from working in hazardous areas, it risks Title VII litigation. If it chooses not to exclude pregnant women from hazardous areas, it increases its exposure to claims if the child is born with injuries that can be tied to the hazardous environment. The Supreme Court has held that it is a violation of Title VII to exclude pregnant women from hazardous positions and has suggested that an employer that fully informs a woman of the risks involved could shield itself from liability.
Discrimination based on sexual orientation is illegal in Colorado under the CADA and was recently determined to be illegal under Title VII of the Civil Rights Act (Title VII) by the U.S. Supreme Court. Both of these laws protect employees against discrimination based on their actual sexual orientation. The CADA also protects employees from an employer’s belief about the employee’s sexual orientation. Under the CADA, an employer cannot refuse to hire, terminate, promote or demote, harass; or discriminate in the terms of compensation, conditions or privileges of employment on the basis of sexual orientation for lesbian, gay, bisexual, transgender or any other protected individuals.
In Colorado, under the CADA, an employer (with 26 or more employees) cannot discharge an employee or refuse to hire a person on the basis that the individual is married to, or has plans to marry, another employee of the employer. This rule does not apply to employers with 25 or fewer employees. The rule also does not apply if one spouse or future spouse:
- would exercise supervisory, appointment or dismissal authority or disciplinary action over the other
- would audit, verify, receive or be entrusted with money received or handled by the other
- has access to the employer’s confidential information, including payroll and personnel records.
Off duty legal activities
Under the Colorado lawful off-duty conduct statute, an employer may not terminate an employee because the employee engages in lawful activity off the employer’s premises during non-working hours.
However, this rule does not apply in either of the following situations:
- the restriction relates to a bona fide occupational requirement or is reasonably or rationally related to the employment activities and responsibilities of a particular employee
- the restriction is necessary to avoid a conflict of interest, or the appearance of such conflict of interest, with any responsibilities to the employer.
An example of the first exception is that a private employee can be terminated for writing a letter to the editor criticizing his/her employer (not concerning public safety) because the employee has an implied duty of loyalty to the employer with regard to public communications.
An example of the second exception is that an employee who performs a certain role for an employer, such as client representative or salesperson, can be likely terminated for starting a competing business that conflicts with, or appears to conflict with, his/her role for the employer.
Even though minimal possession and use of marijuana is now legal under Colorado law, it is still lawful for employers to terminate employees for off-duty use because it violates federal law.
If an employee is wrongfully terminated for engaging in off-duty legal activities, he/she may sue for all wages and benefits that would have been due up to and including the date of judgment had the discriminatory employment practice not occurred.
Even though marijuana is now legal for recreational use and medicinal purposes in Colorado, employers can still consider marijuana usage in making employment-related decisions. Neither Amendment 64 to the Colorado Constitution (which legalized the recreational use of marijuana) nor Colorado’s Medical Marijuana Law affords affirmative employee work rights with respect to marijuana.
As stated previously, under Colorado’s lawful off-duty conduct statute, it is unlawful for an employer to terminate an employee for engaging in lawful activity off the premises of the employer during non-working hours. Contrary to what some employees may argue, this statute does not mean that employers cannot regulate employees’ marijuana use because it is now lawful in Colorado. Marijuana possession and use is illegal under the federal Controlled Substances Act. Thus, even though recreational marijuana use is legal under Colorado law, it is illegal under federal law, and therefore is not lawful off-duty conduct. In accordance with this principle, in 2015, the Colorado Supreme Court concluded that Coloradans who use medical marijuana off-duty can be terminated from their jobs, and Colorado’s lawful off-duty conduct statute will not protect them. Additionally, as discussed previously, the lawful off-duty conduct statute is subject to a couple of exceptions that could potentially allow for the prohibition of recreational use of marijuana by employees.
It is unlawful for an employer to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments and training.
Congress enacted the Age Discrimination in Employment Act (ADEA) to encourage the employment of older individuals based on their ability rather than age and to prohibit acts of arbitrary age discrimination in employment. The ADEA protects individuals who are 40 years of age or older from employment discrimination based on age, and its protections apply to both employees and applicants in public and private employment.
The CADA also provides protection from age discrimination and prohibits discrimination based on age, protecting employees who are between the ages of 40 and 70.
Age claims can be established by direct evidence. Most discrimination cases under the ADEA, however, are brought under the disparate treatment theory. The ADEA has adopted the same general principles governing the burdens of proof as those established in Title VII disparate treatment claims. Accordingly, the process follows this pattern:
- the plaintiff will attempt to establish an inference case of discrimination (in other words, the plaintiff will attempt to establish his/her case through the use of indirect circumstantial evidence that creates the appearance of discrimination)
- the employer responds with a legitimate, non-discriminatory explanation for the adverse employment action
- the plaintiff must prove that the employer’s reasoning is a pretext, or falsehood, to mask unlawful discrimination.
Under the ADEA, in order to establish an inference of discrimination, a plaintiff must prove:
- he or she is a member of the protected age group (40 years of age or older)
- he or she was qualified for the position in question
- despite being qualified; he/she was adversely affected
- someone substantially younger, with similar or lesser qualifications, received the position (or other job benefit) denied to the plaintiff.
Is it sufficient for a plaintiff to show that someone younger replaced him, or must the replacement be outside the protected age group? The Supreme Court has held that an employee is not required to show that someone outside the protected age group replaced him. A 56-year-old employee may establish a case of age discrimination by alleging that he/she was terminated and replaced by an employee who was 40 years old.
However, the Supreme Court has also stated that the plaintiff’s replacement must be substantially younger. A 68-year-old who is replaced by a 67-year-old will not be able to succeed on an age discrimination claim.
- May a plaintiff bring a claim if there is no younger replacement at all? In limited instances, an employee may bring an age claim even though he/she was not replaced. This situation typically arises after a RIF when an employee alleges that his/her job was eliminated alltogether because of his/her age and, he/she cannot identify a younger replacement.
Defenses to an age discrimination claim
Bona fide occupational qualification
The BFOQ is a defense in which the employer concedes that age was considered in an employment practice or policy, but asserts that using age as a qualification is “reasonably necessary to the normal operation of the particular business.” The Supreme Court has adopted a two-part test for determining whether the BFOQ is a valid defense:
- the employer must prove that the challenged policy or practice is “reasonably necessary to the essence of the employer’s business”
- the employer must demonstrate that it is compelled to rely on age as the determining factor for its practice or policy.
The employer may demonstrate this second factor either by demonstrating that it has a “substantial basis for believing that all or nearly all employees above a certain age lack the qualifications required for the position,” or that it would be very impractical for the employer to test each individual employee to determine if he/she has the necessary qualifications.
Bona fide seniority system
The ADEA permits employers to implement a bona fide seniority system (for instance, a system that typically provides benefits based on length of job tenure) so long as it is not intended to evade the purposes of the ADEA. To be valid, a seniority system may not require the involuntary retirement of any employee on the basis of age. Seniority systems typically favor rather than discriminate against older workers, and employees rarely challenge termination decisions based on them.
Employers must ensure that all benefit programs comply with the Older Workers Benefit Protection Act (OWBPA), which amended the ADEA to specifically prohibit employers from denying benefits to older employees. Under the OWBPA, any age-based reductions in an employer’s employee benefit plans must be justified by significant cost considerations. Therefore, in limited circumstances, an employer may be permitted to reduce benefits based on age, as long as the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.
The OWBPA contains a few exceptions to this cost-justification defense. For instance, while an early-retirement incentive program is typically legal, it will be deemed invalid if a court finds that it is involuntary or is inconsistent with the purposes of the ADEA. The OWBPA also states that an employer may not reduce contributions to an employee’s pension plan for any age-related reason.
Good cause or reasonable factors other than age
An employment decision based on good cause or a reasonable factor other than age (RFOA) is lawful. Typically, an employer uses this defense by stating the legitimate business reason motivating the decision, such as poor performance. Courts have held that factors that usually correlate with age (such as pension eligibility, tenure, or seniority) usually fail to satisfy the RFOA defense.
Bona fide executives or high policymaking employees
The ADEA allows an employer to enforce mandatory retirement at the age of 65 for “bona fide executives” or “high policymaking” employees. When determining whether a particular employee qualifies, courts will consider the nature of the employee’s duties, responsibilities, and authority. The ADEA specifies that the employee must have been serving in the bona fide executive position or the high policymaking position for at least two years, and the employee may be retired only if he/she is entitled to an immediate, non-forfeitable, annual retirement benefit of at least $44,000 from the employer.
Reduction in force
The central issue raised in ADEA claims involving a reduction in force (RIF) is the validity of the employer’s decision as to which employees to layoff. There are several criteria on which employers may lawfully base layoff selections. Examples include:
Employers invite liability during a RIF when they fail to articulate clear selection standards and review processes. Thus, it is important for employers to implement layoff procedures and to provide documentation justifying each termination based on factors other than age. Employers should be sure to:
- Confirm that supervisors are providing and documenting candid and accurate evaluations. Employees should have a good indication of how they are performing and should not be blindsided during an RIF with the revelation that their performance is lacking.
- Avoid a situation in which an older employee’s performance rapidly deteriorates in the face of an impending RIF. In this situation, the employer must make an effort to document this decline through conduct reports. Without this safety net, employers may have to rely on performance evaluations that may have occurred before the employee’s performance declined.
There are two techniques employers may use to limit the fallout from RIFs:
- Consider providing a voluntary separation or early retirement incentive.
- Make sure that separation occurs across all age groups.
Waivers of ADEA rights
At an employer’s request, an individual may agree to waive any rights or claims he/she may have under the ADEA in exchange for some benefit to which he/she is not otherwise entitled. The OWBPA imposes specific requirements for releases of ADEA claims.
According to the OWBPA, in order for a waiver that is part of an individual separation to be valid, it must:
- be in writing and plainly communicated
- specifically refer to ADEA rights or claims
- not waive rights or claims that may arise in the future
- be in exchange for valuable consideration (for instance, money or any other benefit) in addition to any benefits or amounts to which the employee is already entitled
- advise the employee, in writing, to consult with an attorney before signing the waiver
- provide the employee at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.
If the waiver is requested in connection with a termination or exit incentive program offered to a group of employees, the requirements are more extensive. In addition to the requirements noted previously, each employee must be given at least 45 days to consider the agreement. Furthermore, at the outset of the 45-day period, the employer must inform each eligible employee, in writing, of:
- the class of eligible employees
- the specific eligibility requirements
- any applicable time limits on participation
- the job titles and ages of all employees eligible or selected for the program
- the ages of all employees in the same job classification or organizational unit who are not eligible or selected.
Return of severance benefits
The ADEA claims to prevent employers from forcing employees into early retirement for the economic benefit of the company. Thus, while a release may prevent a separating employee from filing a suit based on claims under the ADEA, the employee is always free to challenge the validity of the release itself.
Example - Suppose an employer implements an early retirement incentive program and has the participants sign releases in exchange for additional severance benefits. The employees accept the benefits, but later wish to challenge the release, claiming they signed under duress. Must the employees return the benefits they have already accepted as a prerequisite to filing suit? The Supreme Court has held that employees have no obligation to return benefits before filing a suit challenging the validity of a release. To require employees to tender back their benefits would have a “crippling effect” on the ability of such employees to challenge releases obtained by illegal means, such as misrepresentation or duress.
Age discrimination under the Colorado Anti-Discrimination Act
Cases brought under the Colorado Anti-Discrimination Act (CADA) are interpreted in accordance with federal age discrimination cases. Like federal law, claims can be established by direct or inferential (disparate impact) evidence. In order to establish pretext on the part of the employer, a plaintiff must demonstrate more than a simple belief that a discriminatory action was based on age. Under the CADA, age discrimination is allowed in certain circumstances, which for the most part mirror federal law as previously explained. These include:
- employees under 40 or over 70 years of age
- a bona fide occupational qualification (BFOQ) reasonably necessary to normal business operation
- seniority award systems, unless the plan “is a subterfuge to evade the purposes of [the Anti-Discrimination Act]”
- a bona fide executive or high policymaking position mandatory retirement (65 years or older and under 70 years of age).
Title II of GINA is unique because it is the first anti-discrimination law that was enacted to work proactively and prevent discrimination before it becomes entrenched in society. Because GINA prohibits discrimination based on an employee’s genetic information, its protections are intended to encourage Americans to take advantage of genetic testing as part of their medical care. GINA borrows its remedial and enforcement structure from Title VII and became effective on November 21, 2009.
“Genetic information” means an individual’s genetic tests, the genetic tests of family members of an individual, and the manifestation of disease or disorder in family members of an individual. Title II of GINA prohibits employers from:
- discriminating based on genetic information
- acquiring genetic information, except in certain specific circumstances (such as monitoring the effects of workplace exposure to hazardous materials)
- using or disclosing genetic information, should an employer acquire it.
Therefore, genetic information cannot be used in making employment decisions such as hiring, firing, job placement, and promotion. Employers should not make inquiries regarding the family medical history of an applicant or employee. Employers also cannot retaliate against individuals who assert their rights under GINA or treat their employees differently because of their genetic information.
Additionally, whenever lawfully requesting information that may reveal genetic information about an employee (for instance, to support an ADA accommodation request, through a request for sick leave, FMLA, or similar certification, or otherwise), employers are encouraged to include the following notification:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information” as defined by GINA, includes an individual's family medical history, the results of an individual's or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
Whenever the notice is properly given, it will provide a safe-harbor for employers, and any acquisition of genetic information will be considered inadvertent.
Colorado does not have specific legislation directed at protecting whistleblowing employees of private employers acting in a private capacity. However, the Colorado Court of Appeals has recognized that whistleblowing activities with regard to issues that affect the public at large can fall within the common law claim of "termination in violation of public policy." The Court found that Colorado agrees with protecting whistleblowers from retaliatory discharge. However, the breadth of this protection is still unclear.
Colorado law does protect against whistleblower retaliation by private employers under contract with public agencies. Specifically, no appointing authority or supervisor of a private enterprise under contract with a state agency can initiate or administer any disciplinary action against any employee because of the employee’s disclosure of information concerning the private enterprise. This does not apply to:
- an employee who discloses information that he or she knows to be false or who discloses information without regard for its truth or falsity
- an employee who discloses confidential information under any other provision of law.
Employees have an obligation to make a good faith effort to inform their supervisors or a member of the general assembly of any protected information prior to the employee disclosing information under the protection of this statute. It is the obligation of an employee who wishes to disclose information under the protection of this article to make a good faith effort to provide to his/her supervisor or appointing authority or to a member of the general assembly the information to be disclosed prior to the time of its disclosure.
There are a multitude of federal laws that protect whistleblowers for raising concerns dealing with issues such as safety, health, environmental damage, fraud, and other illegal activity. The Occupational Safety and Health Administration (OSHA) administers a variety of whistleblower protections for different industries under the following statutes:
- Asbestos Hazard Emergency Response Act (AHERA)
- Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
- Consumer Financial Protection Act of 2010 (CFPA), Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Protection Act
- Consumer Product Safety Improvement Act (CPSIA)
- Energy Reorganization Act (ERA)
- Federal Railroad Safety Act (FRSA)
- Federal Water Pollution Control Act (FWPCA)
- International Safe Container Act (ISCA)
- Moving Ahead for Progress in the 21st Century Act (MAP - 21)
- National Transit Systems Security Act (NTSSA)
- Occupational Safety and Health Act (OSH Act)
- Pipeline Safety Improvement Act (PSIA)
- Safe Drinking Water Act (SDWA)
- Seaman's Protection Act (SPA), as amended by Section 611 of the Coast Guard Authorization Act
- Section 402 of the FDA Food Safety Modernization Act (FSMA)
- Section 1558 of the Affordable Care Act (ACA)
- Solid Waste Disposal Act (SWDA)
- Surface Transportation Assistance Act (STAA)
- Toxic Substances Control Act (TSCA)
- Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21)
In accordance with Section 105(c) of the Mine Health and Safety Act of 1977, the Mine Safety and Health Administration (MSHA) also protects miners who raise health and safety complaints to their employer, to union representatives, or to government agencies, such as MSHA.
In Colorado, since employees are granted the specific right to apply for and receive workers’ compensation benefits, an employer cannot retaliate against any employee who exercises this right. Such retaliation violates Colorado’s public policy, which provides the basis for a common law claim by the employee to recover damages.
Further, the ADA prohibits an employer from inquiring about an applicant’s workers’ compensation history.
Unions and protected activities
The NLRA and Colorado law both guarantee the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. Employees covered by the NLRA, that is union employees, are protected from certain types of employer conduct.
Under the NLRA, employees have the right to:
- organize a union to negotiate with an employer concerning wages, hours, and other terms and conditions of employment
- form, join or assist a union
- bargain collectively through representatives of employees’ own choosing for a contract with an employer setting wages, benefits, hours and other working conditions
- discuss terms and conditions of employment or union organizing with co-workers or a union
- take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with an employer or with a government agency, and seeking help from a union
- strike and picket, depending on the purpose or means of the strike or the picketing
- choose not to do any of these activities, including joining or remaining a member of a union.
Under the NLRA, it is unlawful for an employer to:
- prohibit an employee from soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms
- question employees about union support or activities in a manner that discourages the employee from engaging in that activity
- fire, demote, threaten or transfer an employee, or reduce the employee’s hours or change a shift, or otherwise take adverse action against an employee, because the employee joined or supports a union, or because he or she engaged in concerted activity for mutual aid and protection, or because the employee chooses not to engage in any such activity
- threaten to close the workplace if workers choose a union to represent them
- promise or grant promotions, pay raises, or other benefits to discourage or encourage union support
- prohibit employees from wearing union hats, buttons, t-shirts or pins in the workplace except under special circumstances
- spy on or videotape peaceful union activities and gatherings or pretend to do so.
It is important for employers to understand that these prohibitions exist even if there is no union or even a union-organizing effort underway or even contemplated. Two employees talking about the terms and conditions of their employment is a protected concerted activity.
Employees can file complaints with the National Labor Relations Board (NLRB), generally within six months of alleged activity that violates the NLRA.
Colorado also recognizes the right of employees to join or not join unions. This includes the right to organize and bargain collectively through representatives, and to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection. The right of employees not to join such activities is also explicitly recognized. The Labor Peace Act is the primary labor statute in Colorado, which recognizes interests of three major groups: the public, the employee, and the employer. The act aims to foster “industrial peace” and says that labor disputes should not intrude on the rights of third parties to earn a livelihood, transact business, or engage in ordinary affairs of life by any lawful means.
The law covers any person, firm, or corporation that regularly hires eight or more employees, but excludes:
- state and political subdivisions
- employers subject to the federal Railway Labor Act
Employer unfair labor practices in Colorado include the following:
- interfering with or restraining employees in exercising their rights to join unions, as well as their right not to join a union
- encouraging or discouraging membership in any labor organization
- firing an employee or refusing to hire a worker solely for his or her membership in union or activity on behalf of that union, or because he or she has filed charges or given information or testimony in good faith under the act
- refusing to bargain collectively with the employees’ duly selected collective bargaining representative
- violating the terms of a collective bargaining agreement
- deducting union dues from an employee’s wages without the employee’s express written permission
- employing anyone to spy on employees or their representatives with regard to their right to organize and bargain collectively
- engaging in blacklisting.
Employee unfair labor practices in Colorado include the following:
- coercing or intimidating other workers (or their families) in exercising their organizing and bargaining rights
- picketing another worker’s home or other personal property
- trying to induce an employer into interfering with another worker’s right to organize or bargain collectively
- violating a collective bargaining agreement
- cooperating or engaging in, promoting or inducing picketing, or boycotting unless a majority in a collective bargaining unit of an employer against whom such acts are primarily directed has voted by secret ballot to call a strike
- hindering or preventing by mass picketing or other coercive tactics, another’s pursuit of any lawful employment, obstruct entry to a workplace or interfere with public transportation
- engaging in a sit-down strike on the premises or property of the employer
- failing to give the notice of intention to strike provided in the act (20 days).
Title VII, the EPA, the ADEA, and the CADA prohibit employers from retaliating against applicants or employees because they opposed discrimination or participated in Title VII/CADA processes. The Supreme Court has also confirmed that employees’ retaliation claims may be brought under Section 1981 as well as Title VII. In order to establish a case of retaliation, an employee must be able to show all of the following:
- he or she engaged in a statutorily protected act
- he or she suffered an adverse employment action
- there is some causal connection between the two events.
Under Title VII’s participation clause, an employer may not discriminate against an employee because the employee participated in Title VII processes. Protected Title VII processes include:
- filing a formal charge of discrimination against the employer
- expressing an intention to file a charge
- acting as a witness or testifying for a co-worker
- refusing to act as a witness for the employer
- assisting fellow workers in their discrimination claims.
Under the opposition clause of Title VII, an employer may not discriminate against an employee because that employee opposed an employment practice made unlawful under Title VII. In situations where the practice opposed is not deemed unlawful under Title VII, the employee’s opposition is still protected so long as the employee had a reasonable and good faith belief that the practice opposed constituted a violation of Title VII.
Often times, it may not be clear what type of conduct qualifies as protected “opposition.” Courts have held that the following activities do constitute opposition and therefore are protected under Title VII:
- complaining about sexual harassment
- contacting an attorney to complain about sexual harassment
- asking an employer whether race played a part in an employment decision
- criticizing an allegedly discriminatory hiring practice a “quasi-social setting”
- indicating support for another employee who filed an EEOC charge to a supervisor
- discussing discriminatory activity – during an employer’s internal investigation – even if by merely responding to questions.
In remedying claims of discrimination that have merit, courts seek to eliminate discrimination and to “make whole” individual victims of discrimination by restoring them to the position they would have been in had the discrimination never occurred.
Title VII of the Civil Rights Act and the Colorado Anti-Discrimination Act
Remedies available to claimants in successful Title VII and CADA claims include:
Injunctive relief - Injunctive relief requires an employer to do, or to refrain from doing, certain acts. For instance, a court may banish unlawful employment practices such as job requirements, educational requirements, scored tests, and age limits.
Reinstatement - Reinstatement is a preferred remedy in cases of discriminatory termination but will not be ordered if the result would be to return the employee to an excessively hostile or antagonistic work environment. In addition, courts generally will not order reinstatement if it would result in another employee’s displacement.
Retroactive seniority - Retroactive seniority awards an aggrieved plaintiff the amount of seniority he/she would have enjoyed had the discrimination not occurred.
Front pay - Front pay may be allowed where reinstatement is not possible and represents the amount of money the employee would have earned if he/she had been reinstated.
Back pay - Back pay awards typically reflect lost wages and benefits.
Promotion - Similar to reinstatement, a court will generally not order an employer to promote a successful Title VII plaintiff if the promotion would result in another employee’s displacement.
Compensatory damages - Compensatory damages are only available as a remedy for intentional discrimination. Compensatory damages pay back an employee for non-economic injuries such as pain and suffering, humiliation, and harm to reputation.
Punitive damages - Punitive damages (money damages meant to punish an employer and to deter future discriminatory conduct) are also only available as a remedy for intentional discrimination. An employer may have a defense to punitive damages if it makes good faith efforts to comply with Title VII. In other words, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where their decisions are contrary to the employer’s good faith efforts to comply with Title VII.
Under Title VII, combined compensatory and punitive damage awards will be capped at:
- $50,000 for employees with 15 to 100 employees
- $100,000 for employers with 101 to 200 employees
- $200,000 for employers with 201 to 500 employees
- $300,000 for employers with more than 500 employers.
As discussed on page 181, if the claim includes an allegation of racial discrimination and relies on Section 1981, there is no cap on the compensatory damages.
National Labor Relations Act
The remedies for illegal discrimination under the National Labor Relations Act (NLRA) are limited to reinstatement and back pay or lost wages.
Equal Employment Opportunity Commission
Title VII and the ADEA are enforced by the Equal Employment Opportunity Commission (EEOC) and through private lawsuits filed in federal court. Before bringing a suit in federal court, a plaintiff must file a charge of discrimination with the EEOC no later than 180 days after the alleged discriminatory event occurred. The CADA is enforced by the Colorado Department of Regulatory Agencies (DORA), Civil Rights Division. A complainant must file a claim with the DORA within six months of the alleged act of discrimination. If the employee’s claim is based on allegations that the employer maintained a continuous discriminatory practice, the employee must file his/her charge within 180 days or six months of the last occurrence of the alleged discriminatory practice.
After a charge is filed, the EEOC or DORA will investigate the claim using a “reasonable cause” or “probable cause” standard, which determines whether it is “more likely than not” that discrimination took place. The focus is on whether the employee established an inference of discrimination and whether there exists any reason to doubt the employer’s stated reason for the employment decision. If the EEOC or DORA determine that facts support the allegation of discrimination, it then attempts to eliminate the unlawful discrimination through mediation geared towards encouraging settlements. If the EEOC or DORA determines that the reasonable cause standard has not been met, it will issue notice to the employee of his/her right to file a lawsuit (often referred to as a “right-to-sue letter”). In either case, if a claimant decides to bring a civil suit, he or she must do so within 90 days of receipt of a right-to-sue notice, or his or her claim is disqualified as untimely enforcement.
The EEOC also enforces the EPA. Unlike Title VII, individuals are not required to satisfy any administrative prerequisites before filing suit. Employees must file suit under the EPA within two years of a violation.
Discrimination claims can be costly to employers. It is recommended that an employer seek legal counsel immediately upon notification that a charge has been filed.
Colorado Department of Labor and Employment
Claims asserted under the NLRA are administered through the NLRB. Claims asserted under the Colorado Workers’ Compensation Act (WCA) are administered by the Colorado Department of Labor and Employment, Division of Workers’ Compensation.