Updated: Remedies for Colorado Workplace Discrimination Claims Will Increase Effective January 2015

The Colorado Anti-Discrimination Act (“CADA”), originally passed in 1959 and expanded in 2007, currently prohibits discrimination in the workplace and in public accommodations based on age, race, disability, gender, sexual orientation, religion, creed, national origin, or ancestry.  The CADA is comparable to federal law, namely Title VII of the Civil Rights Act of 1964 (“CRA”), however, the CADA offers broader protections against discrimination, but also provides significantly less meaningful remedies.

The CADA’s scope of protection exceeds that of its federal counterpart in that the CRA only applies to employers with 15 or more employees, while the CADA applies to employers of any size.  Additionally, the CADA’s prohibition against discrimination based on sexual orientation is not included in the CRA.  This means that the LGBT community’s only protection from discrimination in employment and public accommodation is found under the CADA state law.

However, the CADA is also more limited than the CRA in two significant ways. First, the CADA only allows successful plaintiffs to recover equitable damages, including reinstatement and lost wages.   It does not allow for the recovery of compensatory damages nor punitive damages and it does not allow a successful plaintiff to recover attorney fees.  Second, the CADA only prohibits age discrimination up to the age of 70. After an employee turns 70, they are essentially fair game under Colorado law.

House Bill 13-1136, which has now passed both branches of the State legislature, expands the remedies and protections available under the CADA with regard to employment discrimination. House Bill 13-1136 provides that if a plaintiff in a civil lawsuit proves that he or she was the victim of intentional discrimination in their workplace, then they are entitled to compensatory damages. Additionally, the Bill provides the plaintiff may recover punitive damages if they prove by clear and convincing evidence that the discriminatory or unfair employment practice was done with “malice or reckless indifference to the rights of the plaintiff.”  The Bill also dictates that in awarding any punitive damages, the court must take into consideration the size and assets of the defendant as well as the egregiousness of the intentional discriminatory act or practice.  Additionally, with regard to compensatory and punitive damages, the Bill provides that if the employer has between 1 and 4 employees, then the total of those damages cannot exceed $10,000.  It also provides that if the employer has between 5 and 14 employees, the total of those damages cannot exceed $25,000.  Finally, the Bill limits the maximum damages available to the amounts specified in the CRA.

The Bill also provides for the awarding of attorney fees to either the plaintiff or the defendant in certain specified circumstances.  The Bill authorizes a court to award a prevailing plaintiff-employee reasonable attorney fees and costs.  Conversely, if the court finds that the action was frivolous, groundless or vexatious, the court may award attorney fees and costs to the defendant-employer.

As noted above, age discrimination is only prohibited under the CADA until the age of 70.  House Bill 1136 removes this age limit, allowing for persons over the age of 70 to pursue a claim based on age discrimination.

Finally, the Bill also authorizes the already existing Colorado Civil Rights Commission to appoint a volunteer working group that will assist in education and outreach efforts to foster compliance with the CADA and thereby, reduce the instances of discriminatory or unfair employment practices. If passed, the amendments to the CADA through House Bill 1136 would not take effect until January 1, 2015.

Status: HB 13-1136 passed the House of Representatives on April 19, 2013 and passed the Senate on April 26, 2013.  Governor Hickenlooper signed the bill into law on May 6, 2013.

To read House Bill 13-1136 in its entirety, go here.