Major changes to Colorado discriminination law

The Colorado Anti-Discrimination Act (CADA) went into effect January 2015. This means big changes for employment law in the state.

The (CADA) makes it illegal for an employer to refuse to hire, to discharge, to promote or demote, to harass, or to discriminate in terms of compensation, terms, conditions, or privileges against qualified persons because of disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry.

What has changed?

The CADA was amended in May 2013 when Colorado passed the Job Protection and Civil Rights Enforcement Act, which stipulated it would apply to employment matters after January 1, 2015. The law reaches beyond current federal employment protection by applying to employers of all sizes the CADA also prohibits discrimination based on sexual or gender identity, including the protection of transgender persons.

Under the previous law, employees were only able to recover lost back wages, attorneys’ fees were not part of awards, and plaintiffs were not entitled to a jury trial. The result of this was many employees filing discrimination claims in federal court. This was an advantage to employers, who found federal courts to often rule in favor of businesses.

The most significant change is that now employees may recover compensatory and punitive damages under state law. Plaintiffs may seek damages that include front pay, pain and suffering, loss of enjoyment of life, mental anguish and punitive damages. While federal anti-discrimination laws exclude small employers, the CADA stipulates small employers are liable, and sets caps of $10,000 for employers with one to five employees, and $25,000 for employers with six to 14 employees. Previous legislation had a maximum age cap for age discrimination claims, which have now been eliminated.

Practical implications of the CADA

The changes to the CADA impact employees and employers, attorneys and judges.

Employees who allege intentional discrimination or retaliation may recover the same damages in state court as they would be able to recover in federal court. Now that a much wider range of damages are available for recovery, plaintiffs will have greater incentive to file claims. Plaintiffs will have the opportunity to try cases in their local courts rather than in Denver where the state’s federal court is located.

Employers will likely see an increased number of claims in state court, and may find them less ‘business friendly’ than federal court. Small employers will, for the first time, defend themselves against discrimination and retaliation claims. Risk for employers has increased as potential damages now apply to more areas.

The CADA impacts judges as well. As there is little case law interpreting the CADA than federal discrimination laws, so judges will often make decisions on issues that have not arisen yet. Attorneys’ fees are now recoverable and employment defense and plaintiff attorneys will surely see an increase in claims.

What should employers do?

Adam A. Brown of Fisher & Phillips LLP explores these topics in an article in which he makes the following suggestions for Colorado employers:

• have an attorney review employment policies and assure they meet state and federal requirements
• ensure managers are trained in employment discrimination matters including how to respond to a complaints
• review procedures for investigating complaints
• implement and enforce a strong anti-retaliation policy
• ensure you have effective personnel practices in place and that any disciplinary issues are accurately documented.