May 23, 2015

The Intersection of Lawful Off-Duty Activities and Employment Discrimination

A few years ago, the national and local news ran a story about a man who was employed by a company that distributes Budweiser beer and was fired for drinking a Coors (click here for the Denver Post story). The man said that the company president’s son-in-law saw him sipping the Coors, and he was terminated two days later.

We know there are two sides to every story, and the article focused on the man’s story, not the employer’s. However, if what the man said was true, the employer violated the Lawful Activities Statute, C.R.S. § 24-34-402.5. This statute provides “It shall be a discriminatory or unfair practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours. . . .” The statute applies only to employees, not job applications.

The statute enumerates three exceptions to this rule, if the conduct: (1) relates to a bona fide occupational requirement; (2) creates a conflict of interest; and (3) is rationally related to the employment activities.

In the beer case, the employer claimed that the employee’s activity fell under all three exceptions–the employer stated that the employee was terminated to avoid a conflict of interest, and that his conduct was rationally related to a bona fide occupational requirement.

The beer case never went to trial, but the issue is not uncommon in employment disputes. Very few cases have interpreted the statute, however; Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458 (D. Colo. 1997) provides most of the guidance on the issue.

To learn more about the intersection of lawful off-duty activities and employment discrimination, don’t miss CBA-CLE’s Employment Law Conference April 4 and 5 at the Denver Marriott City Center. Click the links below to register online or call (303) 860-0608.

CLE Program: 2013 Employment Law Conference

This CLE presentation will take place on Thursday and Friday, April 4 and 5, 2013, at the Denver Marriott City Center. Click here to register for the live program.

Can’t make the live program? Click here to order the homestudy.

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