Colorado Overhauls Procedures for Discrimination Charges

Colorado just updated its anti-discrimination law. In June of 2022, Colorado’s governor signed House Bill 22-1367 (HB 1367). This legislation makes significant reforms to the Centennial State’s standards and procedures under its comprehensive anti-discrimination law, the Colorado Anti-Discrimination Act (CADA).

HB 1367 includes four important reforms to CADA with respect to employment discrimination. First, it repeals the exclusion of domestic workers from the definition of "employee.” Second, it extends the time limit for filing a charge alleging unfair or discriminatory employment practices with the Colorado Civil Rights Division (CCRD). Third, it extends the period of time for the CCRD to adjudicate discrimination charges. Finally, it repeals the prohibition against certain damages in cases alleging age-based discrimination. HB 1367 went into effect on August 10, 2022, and its provisions apply only to charges arising after that date.

An Overview of CADA

CADA prohibits various types of discrimination and unfair practices in the areas of employment, housing, public accommodations. In the area of employment, CADA protects employees from discrimination on the basis of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, age, national origin, ancestry, and marriage to a coworker, as well as pregnancy, childbirth, and related conditions. Discriminatory employment actions include refusing to hire, firing, refusing to promote, demoting, harassing, or disparately treating employees on the basis of any of those protected classifications. The Act also prohibits employers from retaliating against employers for having engaged in certain protected activities such as filing a charge or opposing discrimination.

Under CADA, an employee cannot sue the employer directly for discrimination. Rather, employees must file a charge of discrimination with the CCRD within a certain amount of time after the discrimination occurred. Employers have the opportunity to submit a formal response to a charge of discrimination and the complainant can file a rebuttal to the employer’s response. CCRD investigators will inquire into the charge and conduct any necessary interviews. Based on this investigation, the CCRD will make a determination as to whether there is probable cause to find that discrimination occurred. If the CCRD is not able to complete this process in a set period of time, or upon a request by the complainant, the Division may issue a right-to-sue letter to the complainant. Only upon receiving such permission from the CCRD may a complainant file a lawsuit asserting CADA discrimination claims against their employer.

HB 1367’s Changes to CADA

Expanded definition of “Employee” that covers domestic service workers

Before HB 1367 was enacted, CADA’s definition of “employee” specifically excluded “a person in the domestic service of any person.” This meant that domestic service workers such as housekeepers, babysitter, nannies, butlers, caretakes, and other workers employed in private homes could not assert claims for discrimination against the families or individuals they worked for.

HB 1367 deletes the language that excludes domestic services workers. The revised definition of “employee” under CADA is now simply “any individual employed by an employer.” This means that domestic service workers are now covered by CADA’s protections and can bring discrimination charges against their employers. However, HB 1367 also added a provision stating that it is not unlawful to consider a candidate’s sex when hiring an employee engaged in child-care related domestic services. So parents can still lawfully select babysitters and nannies of a particular sex, so long as they do not discriminate on the basis of race, religion, sexual orientation or some other protected status.

Broader remedies for age discrimination claims

Before HB 1367 was enacted, the damages that an employee asserting an age-based discrimination claim could seek were limited to reinstatement, back pay, front pay, liquidated damages, and some forms of equitable relief. Compensatory damages such as those for mental distress, as well as punitive damages against the employer, were not available for age discrimination claims.

As amended by HB 1367, CADA now allows employees asserting age discrimination claims to seek the same damages as were available for other discrimination claims, including compensatory damages and punitive damages.

Extended Time to File a Charge

Before HB 1367 was enacted, a person had to file a charge of employment discrimination no more than 180 days after the date on which the discriminatory conduct occurred. HB 1367 extends this deadline to 300 hundred days, which is the same as the deadline to file a charge of discrimination under federal law with the U.S. Equal Employment Opportunity Commission.

Extended Time for CCRD to Investigate

Prior to HB 1367, the CCRD had a 270-day timeframe to investigate and adjudicate a charge of discrimination. Both parties (the complainant and the respondent employer) had the option of requesting a 90-day extension. Due to significant backlog, the CCRD was asking many parties to exercise their extension options to allow the Division to investigate, hold hearings, and issue determinations on charges.

HB 1367 does away with the elective 90-day extensions and extends the CCRD’s jurisdictional timeframe from 270 days to 450 days.

What Might Have Been and What Is: Implications for Employers

HB 1367 is the result of legislative efforts to dramatically expand the scope of liability for employment discrimination in Colorado. In the 2021 legislative session, a far more expansive bill, SB21-176 (SB 176), narrowly failed to pass. In addition to the reforms that would ultimately be enacted in HB 1367, SB 176 would have expanded CADA’s definition of “employee” to include independent contractors, allowed employees to directly sue employers in court without proceeding through the CCRD process, and imposed several other substantial reforms to CADA in favor of employees. After failing to pass SB 176 in 2021, legislators sought a more moderate compromise bill in 2022. The result was HB 1367.

While the reforms to CADA under HB 1367 are not nearly as sweeping as they might have been under SB 176, they are part of an incremental expansion of liability and compliance issues for employers in the Centennial State. Colorado employers should ensure that they understand the requirements of CADA, that they avoid practices that might be discriminatory, that they obtain ample insurance coverage for employment practices, and that they consult with knowledgeable legal counsel to navigate the ever-changing landscape of employment law.

_________________________________________

Featured Image by Rebecca Sidebotham.