May 21, 2019

Archives for May 29, 2013

Colorado Anti-Discrimination Act Now Provides Remedies in Employment Discrimination Cases

Roseman, BarryBy Barry Roseman

In 2013, the Colorado General Assembly enacted remedies for the employment discrimination provisions of the Colorado Anti-Discrimination Act (CADA) that have been part of Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA) for decades.

The bill, HB 13-1136, provides that Colorado employers found guilty of unlawful discrimination or retaliation, in violation of the CADA, can be held liable for compensatory damages, punitive damages and attorney fees. CADA cases also will be able to be tried to juries. The amounts that can be awarded for compensatory or punitive damages will depend on the size of the employer. Those caps are:

For employers with 1-4 employees: $10,000

For employers with 5-14 employees: $25,000

For employers with 15-100 employees: $50,000

For employers with 101-200 employees: $100,000

For employers with 201-500 employees: $200,000

For employers with more than 500 employees: $300,000

These remedies will not go into effect until 2015, and will apply only to discrimination or retaliation claims that are based on conduct in 2015 or later. Several groups will benefit the most from this bill:

  • Employees who work for smaller employers, who are not covered by Title VII, the ADEA or the ADA. Those statutes apply only to personnel decisions by companies with at least 15 employees (Title VII and the ADA) or at least 20 employees (the ADEA).
  • Employees who have claims not recognized under federal law, such as claims for discrimination because of sexual orientation or gender identity.
  • State employees in ADA and ADEA cases. The U.S. Supreme Court has held that the Tenth Amendment bars claims for monetary damages against State governments and State agencies under those statutes.
  • Employees who live and work far from the Denver area. Claims arising under federal law can be removed to federal court. Claims arising under state law will stay in state court, at least where diversity jurisdiction does not apply.

Public employees cannot recover punitive damages under CADA or under federal law. Employees of the State of Colorado who can file discrimination claims with the State Personnel Board (SPB), and private or public employees who bring claims in Colorado Civil Rights Commission (CCRC) hearings, will not be able to recover compensatory or punitive damages in CCRC hearings or compensatory damages in SPB hearings. Instead, if they prevail on liability in those hearings, those employees will have to file a civil action to try to recover those damages. The CCRC and the SPB will stay their proceedings, including appeal rights, for at least 30 days and possibly longer, to give employees an opportunity to file and prosecute those civil actions.

These amendments track provisions in federal law in several respects:

  • Employers that demonstrate that they acted in good faith to prevent discrimination cannot be held liable for punitive damages.
  • An employer cannot be held liable for punitive damages where that employer has established that it made good-faith efforts to provide a reasonable accommodation to an employee’s disability.
  • Employment discrimination that is unlawful because of the disparate impact of employment policies will not support an award for compensatory or punitive damages.

The courts also are to consider the size and assets of the employer and the egregiousness of its unlawful conduct in determining the appropriate level of damages.

In addition, the bill provides that it unlawful to discriminate against a person who is 70 years of age or older because of that person’s age. That has been part of the ADEA since the 1980s.

The delayed implementation of the bill will give smaller employers an opportunity to learn about CADA and to bring their employment practices into compliance, if they are not in compliance already. The CCRC also is required to establish a volunteer working group by September 1, 2013. That working group is to develop an education and outreach plan for employers, and to compile educational resources for employers. The CCRC shall make this information available to employers, including through its Web site.

Before this law was enacted, Colorado was one of only eight states – five of them in the South – that did not enable plaintiffs to recover compensatory damages, punitive damages or attorney fees in employment discrimination or retaliation cases. HB-1136 brought CADA, at long last, into the 21st Century.

Barry D. Roseman is a partner in the firm of McNamara, Roseman & Kazmierski LLP, and has been representing plaintiffs in employment cases since 1975. He currently serves as co-chair of the National Employment Lawyers Association’s (NELA) Judicial Nominations Committee. He served on NELA’s Executive Board between the organization’s founding in 1985 and 2007; is a former vice president of that organization; is one of the founders and is the chair of the executive board of NELA’s Colorado affiliate, the Plaintiff Employment Lawyers Association (PELA); and chairs PELA’s Legislative Committee. He also is a fan of the Colorado Rockies, in both good times and bad.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Colorado Supreme Court: County Court Abused Discretion by Refusing to Consider Motion to Quash Subpoena Regarding Child Victim of Sexual Assault

The Colorado Supreme Court issued its opinion in In re People v. Brothers on Tuesday, May 28, 2013.

Subpoena—Motion to Quash—Preliminary Hearing—Child–Victim—Standing.

After the county court refused to consider a motion to quash the subpoena of an alleged child–victim of sexual assault before a preliminary hearing, the Supreme Court issued a rule to show cause. As a preliminary matter, the Court held that the district attorney has standing to move to quash the subpoena of a third-party alleged victim of sexual assault. The Court also held that the county court abused its discretion by refusing to consider the motion to quash before the preliminary hearing, because the alleged child–victim could suffer harm if required to appear at the preliminary hearing, even if he did not ultimately testify. The Court made the rule absolute.

Summary and full case available here.

Colorado Supreme Court: Public School Financing System Complies with Colorado Constitution

The Colorado Supreme Court issued its opinion in Lobato v. State of Colorado, Board of Education on Tuesday, May 28, 2013.

Education Finance—Constitutional Interpretation.

The Supreme Court held that the public school financing system complies with the Colorado Constitution, because it is rationally related to the constitutional mandate that the General Assembly provide a “thorough and uniform” system of public education. It also affords local school districts control over locally raised funds and therefore over “instruction in the public schools.” Accordingly, the Court reversed the trial court’s finding that the public school financing system is unconstitutional.

Summary and full case available here.

Colorado Court of Appeals: Indeterminate Sentence Appropriate for Sex Offender Even Though He Did Not Fall Under Sex Offender Lifetime Supervision Act

The Colorado Court of Appeals issued its opinion in People v. Jenkins on Thursday, May 23, 2013.

Sexual Exploitation of a Child—Indeterminate Probationary Term—Sex Offender Lifetime Supervision Act (SOLSA).

Defendant appealed the trial court’s order denying his Crim.P. 35(a) motion. The Court of Appeals affirmed the order.

In three cases, defendant was charged with having committed various felonies. In 2009, as part of a plea agreement, defendant pleaded guilty to charges in two of the cases. In the first case, he pleaded guilty to a drug-related felony, and the court sentenced him to prison for five years. In the second case, he pleaded guilty to one count of sexual exploitation of a child, which was a class 4 felony. The court sentenced him to an indeterminate term of ten years to life of sex offender-specific probation.

Defendant argued that the trial court erred when it sentenced him to an indeterminate probationary term of ten years to life even though he was not convicted of a sex offense subject to sentencing under the Sex Offender Lifetime Supervision Act (SOLSA). Defendant could be considered a “sex offender” if he “pleads guilty . . . to a sex offense” listed in CRS § 18-1.3-1003(4). The crime to which defendant pleaded guilty, however, does not appear in this section. Further, defendant could not have been sentenced as a sex offender under former § 18-1.3-1004(4)(a), because the sex offender evaluator in this case determined that defendant was neither a pedophile nor a predator. Because defendant did not meet either of the relevant definitions of a sex offender in SOLSA, he could not be sentenced to probation “for an indeterminate period of at least ten years . . . and a maximum of [his] natural life” under subsection 1004(2)(a). CRS § 18-1.3-1007(1)(a), however, creates an intensive supervision probation program for two classes of persons who have been sentenced to probation. One class includes sex offenders who are sentenced to probation under SOLSA. The second class includes persons who are not sex offenders under SOLSA, such as defendant, who have committed a sex-related offense but are not sentenced to probation under SOLSA. Therefore, because the trial court had the authority to sentence defendant to a probationary term that exceeded the “maximum period of incarceration authorized” for a class 4 felony, an indeterminate probationary term of ten years to life was not an illegal sentence.

Summary and full case available here

Tenth Circuit: Unpublished Opinions, 5/24/13 and 5/27/13

On Friday, May 24, 2013, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

United States v. Turcios-Arrazola

No opinions were issued Monday, May 27, 2013 due to the Memorial Day holiday.

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 5/23/13

On Thursday, May 23, 2013, the Tenth Circuit Court of Appeals issued no published opinions and three unpublished opinions.

United States v. Cone

Murdock v. City of Wichita

Eldridge v. Berkebile

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.