This is a report of the last Small Firms, Big Success presentation on March 14 covering the Amended Colorado Anti-Discrimination Act.
Guest Blogger: Jonathan Culwell, esq.
The Amended Colorado Anti-Discrimination Act has brought the liability of successful discrimination claims to small employers in Colorado. Sarah Parady and Danielle Urban shared their first-hand knowledge of litigating under the ADA, CADA, and other laws, both prior to and after the recent amendments. They covered changes to the law, the administrative process, some defenses to a charge, and best practices for the small employer. The following addresses some of the issues that small employers, especially small law firms, should be aware of to avoid liability.
What about CADA was updated?
CADA, or the Colorado Anti-Discrimination Act, was amended by the Job Protection and Civil Rights Enforcement Act of 2013 and applies to all claims accruing after January 1, 2015. Likely the biggest change to the law allows for the award of damages against small employers. The compensatory and punitive damages are capped, exclusive of reasonable attorneys’ fees, costs, and lost pay, whether prior or subsequent to the law suit, based on the number of employees:
- 50 or more employees, same caps under Title VII
- 15-50 employees, $50,000
- 5-14 employees, $25,000
- 1-4 employees, $10,000
The amended statute also allows courts to award fees to prevailing defendants in cases that are frivolous, groundless, or vexatious.
The amended statute also made changes to substantive areas. The amendment statute removed the maximum age limit for age discrimination, allowing anyone over the age of 40 to recover. This coincides with the fact that Colorado has experienced a sustained increase in workers over the age of 70, the limit for age discrimination under the original act.
The amended statute also covers discrimination based on sexual orientation, including gender identity; disability and religion, and creed. For example, an employer must allow individuals the use of gender-segregated facilities that are consistent with their gender identity.
On disability and religion, both Parady and Urban point out that a business must provide a reasonable accommodation to allow a person to work. However, no employer is required to bear an undue burden to accommodate an employee. Last, the definition of “creed” in this context includes religious observances and practices, and “any sincerely-held moral or ethical belief.” This does not, says Urban emphasized, include political beliefs. Therefore, in light of today’s POTUS campaigns and their rhetoric, it may be best for employers to discourage any political discussion for fear of getting into a protected subject area.
Finally, under the CADA regulations, all employers must post notices summarizing prohibited discriminatory or unfair practices.
The Colorado Civil Rights Division
The CCRD is tasked with investigating allegations of discrimination in Colorado. Under the administrative exhaustion doctrine, charging parties must begin here before filing suit in a court of law. Thus, the matter begins by alleging discrimination with the CCRD, which considers a charge filed upon receiving the signature from the charging party. A respondent then has 30 days in which to respond by providing a Position Statement and answering Requests for Information. Both are as they sound, with Requests for Information focusing on questions like the number of people employed, their ages, etc.
The charging party next has 30 days in which to provide a rebuttal to the Position Statement. The CCRD must complete its investigation within 270 days, with up to two 90 day extensions, for a total of 450 days. Of course, as it was under the previous statute, a charging party can request a Notice of Right to Sue after the 180th day of investigation.
The CCRD issues determinations based on its findings. Regardless of its finding, a lawsuit must be filed within 90 days of the mailing date of the determination. If mediation between the parties is unsuccessful, the case may be referred to a hearing in front of an ALJ. If the CCRD determines there is “no probable cause,” the charging party has a right to appeal within ten days of the determination. The appeal goes to the Colorado Civil Rights Commission, a seven-member panel that may uphold, remand for further investigation, or reverse the determination below. Statute also allows the attorney general’s office to prosecute the claim on behalf of the charging party. Finally, the CCRD is allowed to investigate further if the claim is settled, but it is rare and would be unlikely for small employers.
Some Defenses to CADA Claims
The statute, as amended, includes some of the same defenses as have applied in the past. They include allowing the statute of limitations to run, the failure to exhaust administrative remedies (more on this important piece for small employers in the next section), employer made a good faith effort to comply with the CADA, the employer is not covered by CADA or has no employees (discussion of 1099 workers versus employees was beyond the scope of this luncheon topic), the employee failed to avail herself of the internal complaint procedure, the alleged discrimination was an employment decision made for a legitimate business reason, and finally, there is an inference that the same actor who hired the charging party fired the charging party for a legitimate business purpose.
A few items that Parady and Urban pointed out in this part of the discussion was founded on their practical knowledge from litigating these cases. For example, Parady noted that when a person has failed to exhaust their administrative remedies, this can put the company on notice that the person feels aggrieved and encourage some companies to retaliate. Small firms should be aware of the fact that retaliation is often a fact pattern that plaintiffs do not mention, and all small employers, including law firms, should have procedures in place to handle liability after any complaint, regardless of the merits.
Urban noted that small employers can often be caught unaware when the person to whom a complaint is made is the same person who would be in charge of follow up with that employee. The best practices below address how small businesses can adapt a strategy to protect workers and managers in these situations.
Finally, a firm’s good-faith defense is an effective corporate defense to a charge alleging harassment by a fellow employee. However, if the person in some way performs functions or maintains ownership that indicates he or she represents the company, this defense dissolves. Thus, with any kind of small employer, there are best practices to follow to avoid some pitfall mistakes.
Small Employer Best Practices
Policies and Handbooks
An employee handbook or policy manual is a good start. Having policies for zero-tolerance on harassment and discrimination are crucial. A policy denouncing retaliation is also important. The handbook should include a procedure for reporting violation of the policy in place. As far as getting employees to acknowledge their understanding of the policies, Urban mentioned that the deposed often say that he or she “just signed it, didn’t read it.” Although this is not a valid defense, the small employer is wise to have some form of acknowledgement from employees that the manual and policies were received and understood.
Small employers must consider what their procedures govern a complaint and the follow up to that complaint, as well as routine practices that guard against liability. If the employer is small enough, it may be best to find a third party to which complaints can be made in confidence. Urban calls this a “bypass” procedure for a good reason, allowing the employee to make a complaint without making it to the same person.
Train managers to be sensitive to what discrimination is, why it is toxic to the workplace, and what to do to avoid allegations of discrimination.
And, one item on Urban’s list of “can’t be mentioned enough:” Document Document Document. Verbal warnings are very important to document, as well as any other performance problems. Small businesses, now that they are subject to CADA, must guard against waiting to document that an employee is underperforming until after the employee makes a discrimination complaint. This common pitfall smacks of retaliation to a plaintiff’s attorney.
The small employer must take CADA liability in mind when making hiring decisions. The most important aspect of a hiring procedure is to treat every applicant the same. A business need not hire someone if the decision was made on legitimate business grounds, but it cannot appear to have been made on unrelated questions. Interviewers should not ask a question because of protected-group status, or even to inquire whether a person identifies with a protected status. One good way to avoid asking these questions or raising assumptions in the interview process is to avoid researching the candidate ahead of time with social media. And law firms, you are subject to the National Labor Relations Board investigations if your revenue exceeds $250,000 annually.
Leave and Disability
Leave and disability issues can be tricky, the presenters warn. A manager must be able to recognize when an employee needs an accommodation regardless of whether the employee has asked for it directly, but must take care not to make assumptions. Again, an employer is not required to suffer an undue burden to accommodate an employee, but defining that can be difficult. The small employer can be even trickier, for example, when one asks for leave. Is leave ever an undue burden to a small employer? One fast and quick rule when it comes to these issues is “if one gets leave, then all should be able to get it.” Often this problem arises when a pregnant woman requests medical leave; her claim would be based on sex discrimination.
On a closing note, both Parady and Urban endorse Employment Practices Liability Insurance if the policy is right for the employer. Such contracts can have carve-outs for wage and hour, fraud, and discrimination claims, as well as other matters. And now they are available for small employers as well as large.
Jonathan Culwell is a member of the Solo Small Firm section of the Colorado Bar Association. He takes clients in HOA matters, Landlord/Tenant, and Civil Litigation. He can be reached at www.CulwellLaw.com.