Employment Discrimination – Denver Employment Lawyer

Colorado employment laws new for 2021

by Denver Employment Lawyer9 Jan 202111 May 2024Leave a comment

Colorado has two new and important employment laws taking effect with the beginning of 2021. 2021 hasn’t started great for many people but for Colorado employees it’s not so bad. Workers in Colorado now enjoy the benefits of the Healthy Families and Workplaces Act (HFWA) and Equal Pay for Equal Work Act.

Today’s post will break down these two new laws and how they will benefit employees in Colorado workplaces. These laws went into effect on January 1, 2021 so if your employers is covered by these new laws and already failing to meet their obligations under these laws then you should talk to a Colorado employment lawyer right away.

Healthy Families and Workplaces Act (HFWA) in Colorado

Colorado employees now enjoy the benefits of the Healthy Families and Workplaces Act in 2021 and beyond for paid sick leave. In 2021 the HFWA applies to employers with sixteen or more employees. In 2022 it will begin to apply to all Colorado employers. This statute allows employees to stay home for forty-eight hours, or six days, of paid sick leave. This law generally applies to both full time and part time employees; however, there are a few exempt employers.

Employees covered by a collective bargaining agreement with more generous terms are exempt. The federal government and employers covered by the Railroad Unemployment Insurance Act are also exempt.

Employees under the Healthy Families and Workplaces Act accrue paid sick leave rapidly. Employees earn one hour of paid sick leave for every thirty hours of work up to the forty-eight hour limit. If a public health emergency, like covid-19, is announced then the accrual is supplemented to eighty hours for a full time employee and for part-time employees a slightly more complicated formula of approximately their normal work time for two weeks. The public health emergency applies even if the employee has exhausted all other paid time off under other policies. Because covid-19 is an active pandemic, the supplement applies for 2021.

The HFWA includes many of the same legal protections and causes of action as other labor and employment laws. The statute requires employers to provide notice in the workplace of these rights in a conspicuous place so look forward to a HFWA notice in your breakroom.

The employment law also includes a private cause of action for employees who are denied paid sick leave compliant with the statute and a private cause of action for employees who suffer retaliation for requesting leave under the statute. This means employees denied paid sick leave under the law or retaliated against for requesting it can sue their employer in Colorado courts. There is no grace period for your employer.

If you have been denied paid sick leave under the HFWA or your employer retaliated for requesting it then you should talk to Colorado employment lawyers right away.

Colorado’s Equal Pay for Equal Work Act

Prior to 2021, Colorado employees were protected from sex-based and gender-based pay discrimination under federal and Colorado law. The federal Equal Pay Act prohibits sex and gender as a basis for pay discrimination (in addition to Title VII of the Civil Rights Act of 1964). Colorado law also prohibited pay discrimination under a bare bones statute giving a nod to the language of the federal Equal Pay Act.

With the Equal Employment Opportunity Commission‘s focus on pay discrimination in the 2010s there has been a focus on beefing up the regulations and statutes prohibiting pay discrimination on the basis of sex or gender.

The new Equal Pay for Equal Work Act strengthens Colorado law and assist employees in pursuing claims for pay discrimination. This statute requires equal rates of pay for similar work across sex, gender and gender-identity. The statute aligns more closely with the federal Equal Pay Act by carving out exceptions for permissible wage discrepancies when based entirely on:

(1) a “seniority system”;
(2) a “merit system”;
(3) a “system that measures earnings by quantity or quality of production”;
(4) the “geographic location where the work is performed”
(5) “education, training, or experience,” but only “to the extent that they are reasonably related to the work”; or
(6) “travel,” but only if the travel is a “regular and necessary condition of the work.”

The employer’s reliance on these factors must be reasonable and cannot factor in wage history, which may be affected by a history of pay discrimination.

Wage-based sex and gender discrimination is certainly not a new issue and not one that will go away any time soon. Increasing the tools for regulators to stamp out these practices and for employees to pursue claims when they are the victim of this form of discrimination is critical to reducing its harmful effects.

If you believe you have suffered pay discrimination on the basis of sex, gender, or gender identity then you should contact an employment lawyer in Colorado right away. This form of employment discrimination can involve claims under several federal and Colorado employment laws which have their own statutes of limitations and administrative requirements that must be met. Experienced Colorado employment lawyers can help you navigate this system.

Does Colorado have anti discrimination laws?

by Denver Employment Lawyer12 Oct 20193 May 2024Leave a comment

Colorado employees enjoy protections from unlawful forms of discrimination under federal and Colorado anti discrimination laws. These employment discrimination laws prohibit employers from treating employees less favorably than other employees on the basis of one or more protected classes. Employees who suffer unlawful forms of discrimination have remedies under federal law and the Colorado Anti Discrimination Act.

If you believe an employer discriminated against you as an employee or applicant then you should contact a Denver employment lawyer to discuss your case right away. Many employment discrimination claims require you to take specific acts within a short period of time to pursue a lawsuit or other remedy.

Federal employment discrimination laws in Colorado

Federal employment laws prohibit several forms of discrimination against employees and job applicants in Colorado. These laws often overlap with the Colorado Anti-Discrimination Act but provide separate rights and remedies from the state law. Federal employment laws prohibit employment discrimination on the basis of:

Race
Ethnicity
Gender
Sex
Religion
Disability
Age (over forty)
National origin

Other employment laws prohibit Colorado employers from discriminating against employees who exercise certain labor and employment law rights, like joining a union or taking FMLA leave, but these are often not thought of as explicitly anti-discrimination laws.

The patchwork of federal anti-discrimination laws (such as Title VII and the Americans with Disabilities Act) give Colorado employees remedies for discrimination on the basis of the protected classes above from acts such as:

failure to hire
failure to promote
harassment/hostile work environment
wrongful termination
pay disparity
demotions

Unfortunately these federal employment laws create a confusing mix of rights, remedies and procedures. For example, a Colorado employee who believes he or she suffers pay discrimination on the basis of sex could pursue claims under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act. Under Title VII an employee must file an administrative charge with the EEOC within 180 days and follow an administrative procedure before a lawsuit filing a lawsuit. Under the Equal Pay Act a Colorado employee can directly file suit but must do so within two years. If you believe you have a claim for employment discrimination under federal law then you should talk to Denver employment lawyers right away.

Colorado Anti-Discrimination Act statute

Colorado anti-discrimination laws

Like most states, Colorado has its own anti-discrimination laws that apply within its borders. These anti-discrimination laws apply to employment as well as other areas such as housing and public accommodations. Colorado prohibits employment discrimination under a single statute, rather than a patchwork design of federal discrimination law. Colorado enacted the Colorado Anti-Discrimination Act to create a uniform structure of anti-discrimination protections for employees and applicants.

What is the Colorado Anti-Discrimination Act?

The Colorado Anti-Discrimination Act is the state statute prohibiting employment discrimination on the basis of protected classes. The protected classes under the Colorado statute today include all of the same classes protected by federal law but also include explicit protections for gender identity and sexual orientation.

Like federal law, the Colorado Anti-Discrimination Act establishes an administrative procedure to enforce the law’s protections and provide a forum for employees to pursue remedies. At one time employees could only pursue relief under the Colorado law through the Colorado Civil Rights Division and only limited types of relief. Today the statute allows Colorado employees to pursue claims either through the administrative process or by filing suit in Colorado state courts.

Unlike federal law, the Colorado Anti-Discrimination Act covers all employers in the state. Federal laws only apply to employers, depending upon the statute, with as few as two employees or as much as a minimum of twenty employees. For some types of employment discrimination in small businesses, the Colorado statute is the only available remedy for employees and applicants.

In many ways the federal and state employment discrimination laws overlap in remedies, rights and protections but it is important to be aware of the distinctions when pursuing a claim. Often employees and applicants will simultaneously pursue claims under both federal and state law which adds an additional layer of complexity to ensure compliance with both federal and state procedures. Hiring an employment lawyer in Denver can make it easier to ensure your claims are not defeated by failing to comply with statutory requirements.

When was the Colorado Anti-Discrimination Act passed?

The original anti-discrimination statute in Colorado was named the Colorado Fair Employment Practices Law enacted in 1957. This law prohibited discrimination only on the basis of race, ethnicity, national origin and religion. It created a rudimentary administrative agency and procedure to enforce its anti-discrimination protections in Colorado. A series of amendments added age (over forty), disability, gender identity and sexual orientation.

Colorado was a prominent battleground for LGBT discrimination protections in the 1990s. For as far back as the 1970s several cities had battled over creating municipal protections against various LGBT-related forms of discrimination. In 1992 a state ballot initiative succeeded to prohibit cities from enacting their own anti-discrimination ordinances barring LGBT-related employment discrimination.

This led to Romer v. Evans which went to the Supreme Court who ruled the amendment violated the federal Equal Protections Clause and struck it down. In 2007 the governor signed the Employment Non-Discrimination Act which amended the Colorado Anti-Discrimination Act to prohibit gender identity and sexual orientation in employment.

The Colorado Anti-Discrimination Act continues to evolve to improve protections for employees. As recently as 2015 the statute changed to allow employees to file suit in state court and to recover compensatory and punitive damages. Today the Colorado Anti-Discrimination Act continues to provide employees in the state with strong employment discrimination protections.

Employment discrimination lawyers in Colorado

Hiring Denver employment lawyers for Colorado Anti-Discrimination Act claims

When pursuing an employment discrimination claim in Colorado there are many immediate issues to consider. The employee or applicant must determine if federal law also applies to the situation or just the Colorado statute. If federal law may apply then one must assess which laws apply and what procedures are required to pursue claims under them.

Those procedures, plus Colorado procedures must be satisfied–often with technical, precise compliance. The Colorado person pursuing claims must also consider the precise explanation of the discriminatory practices to ensure the description matches prohibited acts under the applicable statutes. There are then later decisions about valuing the claims, when and where to file suit and how to proceed in court or an administrative hearing.

Employees and applicants in Colorado typically are not experienced or familiar with these issues. Failing to follow the right procedures can result in completely losing the right to pursue a valid discrimination claim. One of the best things you can do for yourself is to hire Denver employment lawyers as soon as you believe you may have a claim to give your lawyers an opportunity to investigate your claims and follow the process that presents the strongest case. Many offer free consultations and will offer an evaluation of your case to help you decide your next steps.

Tenth Circuit rules ADA failure to accommodate claims must prove adverse employment action

by Denver Employment Lawyer17 Oct 201816 Apr 2024

This month the federal Tenth Circuit held in Exby-Stolley v. Board of County Commissioners, Weld County, Colorado that a failure to accommodate claim under the ADA must prove an adverse employment action. In a 2-1 decision exploring the divide among

federal circuits the majority came down in favor of the employer, extending defensive opportunities to this form of disability discrimination claim. Eventually this issue may rise to the Supreme Court but for now Colorado employees are subject to the explicit holding by the Tenth Circuit in this case.

The facts in Exby-Stolley v. Board of County Commissioners, Weld County, Colorado

Ms. Exby-Stolley was a health inspector for Weld County, Colorado. She suffered a broken arm which made it difficult for her to perform her normal job duties. The parties disagree over the facts that follow.

The plaintiff alleged this set of events. She received a poor evaluation for being behind in work. After disclosing her physical condition she met with her supervisors and human resources. The parties agreed to transition her to part time office work. The pay difference in work hours was made up by workers compensation. After this first meeting, her supervisors’ manager asked plaintiff why she did not take disability and expressed anger that she would not.

Eventually plaintiff grew dissatisfied with the part time position and requested a second meeting. At this meeting all of plaintiff’s proposed accommodations were rejected. At the end of the meeting her supervisors’ manager talked to her and plaintiff understood the conversation to mean she needed to resign. Plaintiff met with human resources and looked at other job opportunities and long term disability.

Days later, plaintiff sent an email to colleagues announcing her resignation because she could not perform her job duties.

Weld County, Colorado alleged similar events with some key differences. The employer alleged at the second meeting plaintiff requested a job should be created for her out of the job duties she could do and that she could not perform all of the normal job duties of her position. Nobody recalled discussing resignation. Instead, no final decision had been made and the defendant expected to continue the interactive process to accommodate her disability.

At the conclusion of a five day trial the jury sided with the employer. Plaintiff appealed that the trial court improperly instructed the jury that she had to prove she suffered an adverse employment action.

Adverse employment actions and failure to accommodate under the ADA

The appellate court wrestled with whether a failure to accommodate claim under the ADA requires the plaintiff to prove she suffered an adverse employment action. Under the Americans with Disabilities Act, an employer has a duty to provide a reasonable accommodation to a qualified individual with a disability.

Failure to provide a reasonable accommodation violates the statute and creates a claim for disability discrimination. Federal circuits disagree whether the failure to accommodate is itself a discriminatory act or whether an adverse employment action must follow the failure to accommodate.

An adverse employment action in employment discrimination law is a serious and material change in the terms, conditions, or privileges of employment. The meaning of this term is well analyzed in employment discrimination law. Whether an employer’s act qualifies as an adverse employment action is fact specific and may be a disputed issue in the course of litigation.

Disability discrimination claims in Colorado

The majority opinion holds an adverse employment action must follow the failure to accommodate

The majority rests its position primarily upon analogizing failure to accommodate claims to disparate treatment claims under the ADA and other federal employment discrimination statutes. The majority fills in the ADA statutory language with analogies to Title VII and case law to assert the statute requires proof of an adverse employment action. It indicates the McDonnell-Douglas framework must be modified to omit the requirement that the employee show he or she was treated less favorably than a non-disabled employee because the failure to accommodate is a discriminatory act under the statute.

The majority spends little to no space explaining why its position is correct; instead it devotes time to explaining that it is correct (and why the dissent is wrong) and that the McDonnell-Douglas framework is appropriately flexible to apply here. The majority fails to draw a compelling case why a failure to accommodate claim is sufficiently indistinguishable from a disparate treatment claim or why a failure to accommodate is not itself an adverse employment action.

The majority dismisses contrary case law with much hand-waiving. It dismisses the dissent’s position that prior Tenth Circuit case law disagrees with the majority by insisting opposing prior case law consists of non-binding dicta and crafts alternative explanations for non-dicta contentions. It provides similar machinations to explain away other circuit disagreement. It instead points to cases from the First, Second, Seventh, Eighth and Ninth circuits as agreement with its position.

The dissent

The dissent alternatively distinguishes between failure to accommodate claims from disparate treatment claims. The dissenting judge asserts failure to accommodate are uniquely different types of claims in which the failure to accommodate serves as an adverse act by itself. The dissent relies upon prior Tenth Circuit opinions distinguishing the two types of claims in addition to agreeing circuits of the Third, Fifth and Seventh.

While the dissent raises a less tortured analysis of binding and persuasive precedent, it also fails to make a compelling case why not requiring an additional adverse employment action makes sense within the objectives of the ADA. It makes more sense for the dissent to draw a brief argument that binding precedent requires an alternative result to the majority; however, an argument why precedent is correct certainly could have helped.

Where Colorado employees go from here

Until the Tenth Circuit or Supreme Court revisits this opinion, employees in the Tenth Circuit are stuck following the majority’s position here. It’s unknown whether the plaintiff will request a rehearing en banc to let the entire court hear the case or ask the Supreme Court to weigh in. The apparent circuit split on this issue will almost certainly be addressed by the Supreme Court at some point soon but that may be years away.

The biggest problem with the majority’s position is that it forces disabled employees who are denied reasonable accommodations to endure the absence of an accommodation until the problem compounds into something a court might agree is an adverse employment action. In between the failure to accommodate and the adverse employment action, disabled employees are likely to fall behind at work and generate a less favorable reputation for his or her work that will not be cured simply by remedying an adverse employment action.

The long term implications go far beyond the immediate adverse employment action. The mere refusal to provide a reasonable accommodation in many cases results in a less favorable employment situation than the disabled employee’s able colleagues. That is the type of discriminatory impact laws like the ADA were enacted to combat.

From a litigation standpoint the majority’s position makes cases more difficult for employees. Requiring the employee to prove an adverse employment action gives employers two additional defensive opportunities.

First, employers obtain the opportunity to assert the alleged adverse act fails to meet the legal threshold to qualify as an adverse employment action. This helps employers in close cases where the adverse act is less obvious, like a termination.

Second, it gives employers the opportunity to allege the adverse employment action occurred due to a non-discriminatory reason. That puts employees in the strange position to argue the employee underperforms and every possible reason for underperformance relates to the unaccommodated disability.

Pursuing failure to accommodate claims with Denver employment lawyers

The decision in Exby-Stolley will make pursuing failure to accommodate claims under the ADA more difficult and more necessary to hire a Denver employment lawyer to represent you. Employees with failure to accommodate claims will have to look closely at what adverse employment action occurred and properly allege it in the lawsuit.

Plaintiffs may allege under the ADA that the failure to accommodate deprived the employee of enjoyment of the benefits of employment as an adverse employment action but it is not yet clear how the Tenth Circuit will treat those arguments. Each of these claims must be carefully reviewed and alleged from the administrative charge through filing a lawsuit.

Experienced employment lawyers in Denver, Colorado can make it an even battle on your behalf. If you believe your employer failed to reasonably accommodate a disability then you should talk to a Denver employment lawyer right away.

What you do from the beginning may help avoid a difficult situation at work or help prepare a strong case from the outset. You also may need to begin work on your case right away due to time limitations under the ADA and state law. Failure to act properly within these time limits may impair your ability to pursue a meritorious case. Talk to Denver employment lawyers about your workplace situation right away.

EEOC or Hiring a Lawyer: When Do You Need an Attorney for Job Discrimination in Colorado?

by Denver Employment Lawyer2 Aug 20189 Apr 20241 Comment

Do you need an attorney for job discrimination in Colorado or should you rely on the EEOC to represent your interests? Employees who suffer discrimination on the job in Colorado likely have never had to deal with the EEOC or hire an employment discrimination lawyer in Denver. Learn more about when you may want to talk to an EEOC lawyer and when you do not have to work with the EEOC. This post will discuss:

The EEOC process;
When you must follow the EEOC process;
When you do not have to follow the EEOC process;
What an attorney for job discrimination can do for you; and
When you may want to talk to an attorney.

Employees in Denver and other parts of Colorado may have alternative procedures and remedies under state anti-discrimination law and we will touch on that issue as well; however, the primary focus of this post will be the EEOC process and federal employment discrimination remedies.

Most job discrimination claims in Colorado must go to the EEOC

If you believe you suffered job discrimination and need an attorney you need to know that many federal civil rights laws require you to first file a complaint with the EEOC before you can file a federal lawsuit. Most federal employment discrimination laws require you to file a complaint with the EEOC called a charge of discrimination.

After filing your charge of discrimination, EEOC investigators will investigate and you likely will proceed through an informal settlement process.

If your complaint does not settle then you will either have the opportunity to have your case heard by an administrative law judge or file a lawsuit in court. The EEOC investigator may tell you that you do not need to hire an attorney for job discrimination; but that may result in missing options in your employment discrimination or hostile work environment claims.

Why you may want to talk to an attorney for job discrimination in Colorado first

You can file a complaint with the EEOC without hiring an attorney for job discrimination. The EEOC intake process for complaints is designed to allow workers to report discrimination on the job without an attorney. However, you may want to schedule a consultation or hire an attorney for job discrimination before filing your EEOC complaint. Your attorney for job discrimination may encourage you to follow the EEOC process. A lawyer can advise you how to proceed through the process and what to include in your complaint.

Anything you leave out of an EEOC complaint likely cannot be pursued later so it is important to present a strong EEOC complaint.

Additionally, Colorado has its own state remedies for job discrimination. Colorado state law (C.R.S. 24-34-401 et seq) creates its own framework for dealing with job discrimination. C.R.S. 24-34-401 et seq. provides state law remedies for job discrimination broader than some federal anti-discrimination laws.

The Colorado employment law also empowers the Colorado Department of Labor and Employment to receive charges of discrimination. The state agency can investigate and pursue claims of job discrimination. Colorado employment lawyers can advise you whether you should pursue your claims under federal or state law and with which agency to file your charge.

When you can go straight to court under federal discrimination law

Most job discrimination laws require you to exhaust your administrative remedies through the EEOC or a state discrimination agency before you can file a lawsuit. Two federal employment laws do not require you to exhaust remedies before filing a lawsuit:

Age Discrimination in Employment Act
Equal Pay Act

The Age Discrimination in Employment Act (ADEA) prohibits discrimination on the basis of age against workers over forty. It requires employees to file a charge of discrimination with the EEOC but does not require the worker to receive a Right to Sue Letter from the EEOC before filing a federal lawsuit. The worker must file suit, if desired, no earlier than sixty days after filing the charge of discrimination and no later than the ninetieth day after the EEOC concludes its investigation.

The Equal Pay Act prohibits discrimination in compensation between men and women. It does not require workers to file a charge of discrimination with the EEOC or receive a Right to Sue Letter before filing a lawsuit.

Note that an employee may have sex discrimination claims under both the Equal Pay Act and Title VII of the Civil Rights Act of 1964 which does require filing a complaint with the EEOC. Before deciding not to file a complaint with the EEOC you should talk to an attorney for job discrimination.

If you have potential claims under both statutes and do not file a charge of discrimination and lose on your Equal Pay Act claim you may not be able to file a claim for the same discriminatory acts under Title VII. A lawyer familiar with the EEOC and anti-discrimination statutes can help you assess the best course of action.

When you can opt out of EEOC involvement in your Colorado job discrimination claim

You may be required by federal employment law to begin your job discrimination claim with an EEOC complaint. However, you do not have to keep your discrimination claim with the EEOC. You have the option under anti-discrimination laws to quit the EEOC administrative process and file a private lawsuit if one or more conditions are true. These include:

The agency has not responded with a decision within 180 days and no appeal has been filed on the complaint;
The EEOC issued a determination and neither employer or employee filed an appeal;
The EEOC does not respond to your appeal or the employer’s appeal with a determination within 180 days; and
You do not agree with the EEOC’s conclusion on your appeal.

The EEOC may choose not to pursue your charge of discrimination and issue a “Notice of Right to Sue” to you. If you receive a Notice of Right to Sue from the EEOC then you should talk to an attorney for job discrimination right away.

attorney for job discrimination in Colorado

Note that should you decide to pursue a private lawsuit you must do so within ninety days of the EEOC:

Issuing a decision and no appeal is filed;
Issuing a decision on an appeal to its initial decision; or
Declining to pursue your charge of discrimination and issuing a Notice of Right to Sue.

If you fail to file a private lawsuit within this limitations period then you may be barred from pursuing your claims in court. Therefore, it is vital that you talk to an attorney for job discrimination–if you haven’t hired one already–about your options. Waiting to talk to an employment lawyer or filing a lawsuit can be fatal to your discrimination claims.

Hiring a lawyer in federal court or go to the EEOC with your Colorado job discrimination claims

Often the EEOC administrative process will not result in a satisfactory resolution through its settlement or other administrative procedures. The EEOC may decide to file a federal lawsuit on behalf of you and your claims. The EEOC files federal lawsuits on job discrimination claims on few complaints but if it decides to pursue yours in federal court you have options. You may allow the EEOC to represent you in court.

You can also choose to have a private attorney for job discrimination represent you. This can give you more flexibility and control over your case, particularly over settlements. If the EEOC represents you in federal court then the agency is not required to take direction from you on the lawsuit.

If you have already hired an attorney for job discrimination before filing your EEOC charge of discrimination then you and your attorney will make decisions about how to proceed with a trial at that time.

Hiring an attorney for job discrimination for your Colorado state law claims

As discussed above, Colorado state law also prohibits several forms of job discrimination. Under Colorado law you may also need to file a complaint with the Colorado Department of Labor and Employment. If you file an EEOC complaint you can request to cross-file the complaint with the state. Colorado law has similar administrative procedures as the EEOC. You may need to exhaust administrative remedies applicable to state law to proceed with a lawsuit that includes state law claims.

You should talk to a Colorado attorney for job discrimination about your case before filing a complaint with either agency. Your attorney can discuss the strategic considerations behind filing your claims under federal law, state law, or a combination of the two. Once you start taking action on your claims you may make decisions that limit your procedural options. Gain legal counsel before taking those steps to put the strongest case forward.

Finding a Denver employment lawyer for job discrimination

Employment lawyers in Denver and other parts of Colorado often have experience working with job discrimination claims under federal and state law. There are many ways to find an employment lawyer to advise you on your claims. Employment discrimination claims are among the more common claims handled by employment law attorneys in Colorado.

Research lawyers and schedule a consultation with one or more to discuss your claims and consider representation. Employee rights lawyers in Denver and around Colorado can discuss the issues raised in this post with you along with other important issues to your potential lawsuit.

EEOC says #MeToo not causing more sexual harassment claims to agency

by Denver Employment Lawyer14 Jun 20188 Apr 2024Leave a comment

This week the EEOC reconvened its Select Task Force on the Study of Harassment in the Workplace. EEOC Chair Victoria A. Lipnic stated in public comments that the agency has not seen a rise in EEOC complaints or charges of discrimination as a result of the #MeToo movement.

This might come as a surprise to many, given the publicity given to sexual harassment claims and lawsuits (such as this one against former Fox News host Bill O’Reilly and complaints against Colorado lawmakers). However, in looking at the bigger picture of sexual harassment complaints in the workplace this is far less surprising.

What the EEOC tells us about the impact of #MeToo on sexual harassment complaints

The EEOC Chair disclosed that there has not been a recent increase in complaints of sexual harassment to the agency; however, there has been an increase in website traffic to EEOC resources on sexual harassment. This suggests there is a greater awareness of sexual harassment issues in the workplace but those issues are not funneling up to the anti-discrimination agency.

Chairwoman Lipnic also points out that in her conversations with HR professionals and employment lawyers, there is an uptick in sexual harassment complaints to employers. Those complaints find internal resolution from the employer so pursuing external complaints to the EEOC is less often necessary.

The BLR HR blog sought out comments from employer-side employment lawyers on these comments. The lawyers acknowledged there has been more activity but employers are taking steps to improve training and procedures to deal internally with complaints of sexual harassment. They claim employers are motivated by the publicity of the #MeToo movement so there is at least some positive impact across employers even if it is less visible.

Why internal complaints of sexual harassment prevent employees going to the EEOC

There are three main reasons why effective internal procedures for reporting sexual harassment within employers reduces the likelihood that the employees will seek an employment lawyer or file an EEOC charge of discrimination.

1. A change in the corporate culture to take sexual harassment complaints seriously reduces the likelihood that harassment occurs.

A key reason why sexual harassment remains an ongoing problem in the workplace is that the harasser feels he or she can get away with the offensive conduct without consequences. Too often harassers feel empowered to cause harm to other employees because they feel there is a lack of consequences for their actions. If a potential harassers feels employees are more likely to report harassment and the employer may treat the complaints more seriously then the risk to the potential harasser increases substantially.

2. Most harassed employees want the hostile work environment to end, not make waves.

Generally employees who suffer workplace harassment just want the harassment to end and to make sure it does not happen in the future. That is especially true when the harassed employee fears retaliation for reporting harassment. For most people, experiencing sexual harassment at work is an incredibly humiliating situation that they want to end with as little publicity as possible.

Many fear reporting harassment to the EEOC or the Colorado Civil Rights Division will make retaliation more likely but eventually may feel they have no choice when internal reporting procedures fail to cure the harassment. Improving internal procedures to receive and act upon reports of sexual harassment means fewer harassed employees need to take the next step of reporting externally to the EEOC.

3. Employees have to report internally as a first step in most cases.

In the late 1990s, federal courts decided employees should have to report unlawful harassment to the employer and give the employer an opportunity to cure the harassment in most situations.

This is known as the Ellerth/Faragher affirmative defense.

If employees fail to take advantage of an internal complaint procedure then an employer can raise a defense against the employee in an employment discrimination lawsuit that the employer would have stopped if the harassment if it only knew.

Employees experiencing harassment and seeking out employment lawyers are likely being directed to make internal reports as a first step due to this affirmative defense. As internal procedures improve–or employers at least take them more seriously–these employees are hopefully gaining more satisfaction from these internal procedures than in the past. If the internal procedures effectively end the harassment then the need for an external EEOC complaint decreases.

What should Colorado employees do with a sexual harassment complaint?

The good news is that right now there is a high probability that sexual harassment will be dealt with in a meaningful manner by your employer if you report it internally. Eventually employers will probably slide back towards their prior position of treating complaints less seriously but how long before that happens is unclear. Employees suffering harassment should nevertheless take advantage of their employers’ diligence while it lasts.

If you work in Colorado and suffer sexual harassment or other forms of harassment then you should talk to an employment lawyer near you right away. Your lawyer can advise you about:

Whether you need to make an internal complaint;
Who to deliver the internal complaint;
What to include in the complaint;
What your next steps will be in the event the internal complaint does not solve the problem; and
What additional steps you should take to document the harassment.

Bill O’Reilly sexual harassment settlements to be revealed

by Denver Employment Lawyer11 Apr 20185 Apr 20241 Comment

Bill O’Reilly was once at the top of the food chain at Fox News until the focus on President Trump’s sexual harassment crashed into allegations of O’Reilly’s own harassment and the cable network cut ties. In the course of litigating O’Reilly’s current sexual harassment allegations it has become public that he settled several prior sexual harassment claims with other female co-workers although until now the terms of those settlement agreements remained concealed beneath confidentiality provisions.

The terms of these settlement agreements are unusual and potentially unethical to the employment lawyers representing the plaintiffs.

One such settlement agreement resolved a harassment claim by Andrea Mackris, a former Fox News producer, who settled a 2004 lawsuit. Among the terms of the settlement agreement entered into the court record in the current lawsuit are two unusual provisions:

Mackris must deny the validity of the allegations and insist they are false, even under oath; and
Her attorney would represent O’Reilly and Fox News regarding sexual harassment allegations.

Deny, deny, deny the sexual harassment allegations

It’s not unusual for employment lawyers to agree to resolve sexual harassment and other employment discrimination lawsuits with agreements that contain various confidentiality provisions.

Often employers require plaintiffs to not only maintain confidentiality of the underlying allegations but also to alert the employer if a reason ever arises in which the employee must discuss the allegations or settlement agreement in a legal proceeding or investigation. An employee might be called to participate in an EEOC investigation of another allegation of discrimination or subpoenaed by an attorney to testify in a lawsuit about his or her experiences with the company.

In these situations, attorneys for the employer want the opportunity to try to prevent the plaintiff from providing testimony.

However, it is unusual for an agreement to require Mackris to give false testimony under oath or in any other situation which might expose the plaintiff to criminal or civil liability. There are several problems that could exist with this settlement agreement. The agreement may be void under its state law because it is an agreement to commit a future crime. If Mackris gives false testimony in an EEOC or judicial proceeding that exposes her to liability for perjury then it might also expose O’Reilly or Fox News as conspirators in the perjury.

The liability might not fall solely on the parties. The employment lawyers on both sides may share liability as co-conspirators and certainly there could be ethical issues raised by advising their respective clients to enter into this agreement. Mackris’s former attorney may be more at risk because he likely advised his client to accept the terms of the settlement agreement and at least implicitly advised her to commit future perjury.

Yikes.

Switch hitting lawyers

The settlement agreement also strangely requires Mackris’s then lawyer to become O’Reilly’s and Fox News’s lawyer to advise them on sexual harassment matters. This is one wacky settlement term not just for a sexual harassment lawsuit but for any lawsuit.

It’s clear why O’Reilly and Fox News would want this provision but it’s less clear how Mackris’s lawyer thought this would be a good idea. The settlement agreement read into the court record states:

“As an inducement to O’Reilly and Fox News to enter into this Agreement, and as a material condition thereof, the Morelli Firm (i) agrees to provide legal advice to O’Reilly regarding sexual harassment matters, and (ii) warrants and represents to O’Reilly and Fox News that it will not, and will not knowingly permit any of its employees, agents or representatives to represent, assist or cooperate with any other parties or attorneys in any action against O’Reilly, Fox News or the Companies arising out of actual or alleged sexual harassment issues, nor will they encourage any other parties or attorneys to commence any such action or proceeding.”

Here’s why I believe the defendants wanted this provision:

If Mackris’s lawyer represents the defendants in related matters then his firm cannot represent any other plaintiff against them;
Which means his law firm cannot use prior knowledge of the settlement agreements or past plaintiffs in future suits against defendants;
And cannot provide that information to any other prospective plaintiff or investigator in subsequent proceedings; and
Cannot advise Mackris about whether the settlement agreement’s seeming requirement to perjure herself is an enforceable provision.

O’Reilly or Fox News likely worried that Mackris’s lawyer might try to find other co-workers with similar allegations and pursue multiple other lawsuits knowing some of the facts behind the case and how much the defendants would be willing to settle. This is not an unreasonable fear, lawyers do this all the time.

However, while the fear may be reasonable, the way they chose to deal with the problem is not as reasonable. It’s not entirely clear from the court record or the settlement agreement why the plaintiff’s lawyer thought this term was a good idea but it raises eyebrows to see lawyers agree to become an opposing party’s lawyer before the current lawsuit is resolved.

The lawyers for the plaintiffs in the current lawsuit described this as switching sides in the middle of the case which Morelli disagrees as an inaccurate description of what happened. At a minimum it raises serious ethical questions about whether a lawyer can even agree to represent an adverse party before representation of the current party concludes.

What to do if you are sexually harassed at work

Unfortunately sexual harassment is all too common at work in Colorado. If you believe you are the victim of sexual harassment at work then you should find an employment lawyer right away to discuss your situation. Sexual harassment claims generally require you to take specific acts with your employer and then with government agencies before you can proceed with a lawsuit.

Your employment lawyer can advise you how to maneuver these steps to hopefully resolve the conflict or pursue remedies for the harm caused by the harassment. Sexual harassment lawsuits are rarely simple cases so hire a Colorado employment lawyer to give yourself the best chance for justice.

First Circuit moves towards acknowledging sexual orientation discrimination prohibited by Title VII

by Denver Employment Lawyer6 Apr 20185 Apr 2024Leave a comment

Over the past two months I’ve written about federal employment discrimination lawsuits focusing on LGBT-based discrimination as forms of sex discrimination under Title VII of the Civil Rights Act of 1964. The Second Circuit recently joined the Seventh Circuit to hold sexual orientation is a prohibited form of sex discrimination under Title VII and the Sixth Circuit explicitly held transgender discrimination is prohibited under Title VII.

This month the First Circuit continues down the path with another lawsuit involving sexual orientation. Although the First Circuit did not go as far as its colleagues in the Second Circuit and Seventh Circuit, it acknowledged that employment discrimination law is evolving in that direction. This decision in Franchina v. City of Providence is the first to address sexual orientation as the “plus” factor in a sex-plus discrimination lawsuit under Title VII.

The backstory on Franchina v. City of Providence

Lori Franchina was a firefighter for the City of Providence, Rhode Island and is a lesbian who suffered a long history of sex discrimination at work. Franchina worked with a male firefighter who often made comments and sexual gestures to Franchina and other firefighters about her sexual orientation. Although she did not complain herself, the coworker’s behavior became known to a superior who disciplined the coworker.

In response, Franchina suffered a long history of workplace harassment related to her sex, including vulgar comments, both verbal and written, and foul acts against her. Despite forty written complaints, the department took no action to stop the harassment. Eventually she retired from the department with a diagnosis of PTSD.

Franchina’s lawsuit advanced to an eight day trial in which she asserted the disgusting behavior was unlawful sex-plus harassment. The “plus” factor alleged was her sexual orientation. The jury awarded her over $800,000 in emotional distress and lost wages which unsurprisingly triggered the employer to appeal.

After launching a series of weak arguments up on appeal the First Circuit affirmed the trial court’s judgment.

The plaintiff initially pursued a separate sexual orientation discrimination claim which was dismissed upon a motion to dismiss early in the lawsuit because the First Circuit decided in the past not to extend Title VII over sexual orientation claims.

The appellate court explicitly acknowledged that other appellate courts had changed their minds on this issue but declined to follow because Franchina did not appeal the dismissal of her claim. Nevertheless, the sex-plus discrimination claim continues an important line of authoritative acknowledgement of sexual orientation discrimination as a component of sex discrimination under Title VII.

What is a sex-plus discrimination claim under Title VII?

The sex-plus theory of discrimination is a form of sex discrimination that alleges the employer discriminated on the basis of sex plus another factor that made a discrete group of women the target for discrimination. The “plus” factor can be another protected status or trait, such as race or age, but it can also be a factor not explicitly protected like women who have small children.

Sex-plus claims do not set a higher burden of evidence for the employee; the employee does not even have to prove the “plus” factor. An employee only has to show sex or gender was, by itself, at least one motivating factor in an adverse employment action.

Sex-plus discrimination claims acknowledge that sometimes sexual harassment and other forms of sex discrimination target some women but not others because of a second, related trait and the discrimination on the second factor cannot be untangled from the sex discrimination.

As a substantive matter, courts have long accepted sex-plus discrimination claims to protect employees from sex discrimination in which only some members of a sex may be targeted because Title VII does not require a perpetrator to discriminate against every member of a sex for the victim to prevail on a claim.

Procedurally, when the “plus” factor is not explicitly protected under Title VII the sex-plus discrimination claim makes it difficult for the employer to take the position that it discriminated but only on the unprotected “plus” factor and not on sex or gender.

Sex-plus discrimination and sexual orientation

Nevertheless, that is exactly what the employer attempted to do on appeal in this case. The thrust of the employer’s appeal relies on the argument that the plaintiff only presented sufficient evidence of sexual orientation discrimination and not sex or gender, therefore the jury verdict cannot be upheld.

The employer pointed to First Circuit precedent denying sexual orientation as the sole basis for a sex discrimination claim under Title VII. The First Circuit dismantles the employer’s position on two fronts.

First, it acknowledges its own precedent but points out even the employer’s chosen case law the appellate court left open the door to sexual orientation as a “plus” factor. The Court then expresses that no reason exists why sexual orientation cannot be a “plus” factor. The court does not deeply explore this issue but in explicitly thrusting the door fully ajar it took full advantage of the appeal in front of it to expand sexual orientation as an issue related to sex discrimination under Title VII.

Not only will this make it easier, at least in this circuit, to bring sex-plus claims with sexual orientation, but also signals the court may be willing to take more progressive steps in future appeals.

Second, the court explored the evidence and found even without looking at the evidence of sexual orientation there was more than sufficient evidence of sexual harassment on plaintiff’s sex and gender given the many offensive comments and acts perpetrated by her coworkers.

Although the First Circuit did not spend much space applying the facts to sexual orientation as a “plus” factor, its clear willingness to do so in any future case has broad and important meaning for future cases in the circuit.

What this case means for Colorado employees

As usual, I like to bring these discussions back to Colorado and what it means for employees in this state. Colorado is not part of the First Circuit so this case does not directly affect employees in this state; however, it is another federal circuit moving sympathetically towards including sexual orientation discrimination as a prohibited act under Title VII which affects Colorado employees.

As more circuits reverse precedent opposing its inclusion, the circuits will either settle the matter by reaching agreement or a circuit split will push the Supreme Court to have the final word. Then federal law will join Colorado state law in prohibiting sexual orientation discrimination at work, giving employees another legal avenue to pursue claims for sex discrimination in the workplace.

If you believe you suffered employment discrimination at work on the basis of sex or sexual orientation then you should find an employment law attorney in Colorado and schedule a consultation.

Another appellate court holds Title VII bars LGBT discrimination as a form of sex discrimination

by Denver Employment Lawyer10 Mar 20185 Apr 20241 Comment

Last week I wrote about the Second Circuit’s opinion earlier this year holding sexual orientation discrimination as a form of sex discrimination prohibited by Title VII. In the title of that post I questioned whether the tide is turning among federal courts to prohibit sexual orientation discrimination under Title VII.

It certainly seems that way as the Sixth Circuit dropped its opinion in EEOC v. R.G. &. G.R. Harris Funeral Homes reaching the same conclusion on transgender discrimination. This brings the count to three of the thirteen federal circuits abandoning earlier positions opposing inclusion of LGBT discrimination under Title VII in favor of broader protections against sex discrimination.

Overview of EEOC v. R.G. & G.R. Harris Funeral Homes

In EEOC v. R.G. & G.R. Harris Funeral Homes a transgender employee was fired after disclosing her intent to transition. Aimee Stevens was hired by the funeral home with her male birth name and appearance. After obtaining the job she informed her employer that she intended to transition and would begin working with her female appearance. The funeral director in response fired her.

A Michigan federal district court dismissed the EEOC‘s case on the basis that transgender discrimination was not a form of sex discrimination prohibited by Title VII.

Sixth Circuit holds transgender discrimination is sex discrimination

The Sixth Circuit disagreed with the district court holding:

We hold that the EEOC could pursue a claim under Title VII on the ground that the Funeral Home discriminated against Stephens on the basis of her transgender status and transitioning identity. The EEOC should have had the opportunity, either through a motion for summary judgment or at trial, to establish that the Funeral Home violated Title VII’s prohibition on discrimination on the basis of sex by firing Stephens because she was transgender and transitioning from male to female.

…

Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII. The unrefuted facts show that the Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex, and therefore the EEOC is entitled to summary judgment as to its unlawful-termination claim.

Total beat down on the district judge.

Unlike sexual orientation discrimination which has only more recently been recognized as a form of sex discrimination under employment discrimination laws, discrimination on the basis of gender and sex stereotypes has been recognized as an unlawful form of sex discrimination under Title VII since Price Waterhouse v. Hopkins in 1989 and commonly extended to cover transgender discrimination.

The Sixth Circuit also rejected the employer’s argument that accepting her identity burdens his exercise of religious freedom.

Although in last week’s post I opined that SCOTUS likely won’t hear any of these cases until more circuits weigh in and a circuit split in new cases exists; however, with the interplay of the religious issue SCOTUS might be more inclined to hear this case given its recent desire to hear cases on religious freedom issues.

What this means for Colorado employees

Another decision outside of the Tenth Circuit bears no direct effect on Colorado employers or employees but it brings us closer to a day when the Tenth Circuit may find allies on either side of its own decision on LGBT issues.

If this case makes its way to SCOTUS and the court decides to weigh in on the LGBT issues under Title VII then the issue may be settled under federal law for Colorado.

For now employees facing LGBT discrimination in Colorado enjoy protections under state law so the issue is less urgent in this states than other less forward-thinking states. Colorado employees facing LGBT discrimination in the workplace should contact a Denver employment lawyer for help.

Colorado Labor Law

by Denver Employment Lawyer29 Sep 201720 Mar 2024Leave a comment

Employees in Denver and other parts of Colorado enjoy protection under federal, state and local laws. Employees enjoy protections under wage laws, labor organizing laws, anti-employment discrimination laws, worker safety laws, benefit plan laws, worker’s compensation, contract law, medical leave laws and a variety of other statutes and regulations.

On several areas of labor and employment law, an employee’s claim may fall under both federal and state law. Colorado employment lawyers understand the fit between these laws and how to best represent their clients claims.

Filing claims under federal or state law can dictate what courts a worker can enter. Which court hears an employee’s case may affect the available remedies, the available jury pool and other factors that affect the worker’s probability of a successful claim.

Colorado Revised Statutes Title 8: Labor and Industry

Most Colorado labor and employment laws exist within Colorado Revised Statutes title 8. This includes wage and hour laws, workers compensation and the Colorado unemployment benefits system. Like most states, the wage and hour sections of the Colorado Revised Statutes contains some provisions that mirror federal wage and hour laws but also includes provisions expanding upon federal law.

The Colorado Revised Statutes provides greater specification on the timing and method of wage payments, such as payroll deductions, pay dates, pay frequency and payment of wages after termination. Workers compensation and unemployment benefits are solely state law issues.

Colorado Revised Statutes Title 24: Government

Title 24, Article 34 of the Colorado Revised Statutes (C.R.S. 24-34-401 et seq) includes the Colorado state law prohibiting employment discrimination. Title 24 of the Colorado Revised Statutes makes it unlawful for an employer, employment agency, or labor union to discriminate on the basis of:

Age
Disability
Creed
Color
Ancestry
National origin
Sex
Sexual orientation
Race
Pregnancy and childbirth

The protected classes of employees under Colorado law closely mirrors federal law with the exception that it specifically prohibits sexual orientation. Currently federal courts hold that sexual orientation is not prohibited by Title VII of the Civil Rights Act or any other federal anti-discrimination law. Colorado law closely follows the meanings and usage of reasonable accommodations, harassment and retaliation related to employment discrimination.

Additional protections for employees under Title 24

This title of the Colorado Revised Statutes also prohibits employers from discharging employees for off premises work activity unless that activity is closely related to a bona fide occupational requirement or the activity would create a conflict of interest for the employer.

Additionally, this section of the Colorado Revised Statutes protects the right to three days of leave for the victim of domestic abuse or sexual assault for medical care, seeking legal help, or protecting himself or herself from further abuse.

A claim under Title 24 of the Colorado Revised Statutes must be filed with the Colorado Civil Rights Commission within six months. The exception is for claims that the employer discharged the employee for off work activity. Those claims may be filed in district court within the applicable limitations period for filing a civil suit. (Galvan v. SPANISH PEAKS REG. HEALTH CENTER, 98 P.3d 949 (Colo. Ct. App. 2004))

Colorado labor and employment laws and employment lawyers

This post is just the tip of the iceberg of the labor and employment laws that cover Colorado workers. If you believe your employer mistreated you in hiring decisions, termination decisions, or during your employment then you should speak with employment lawyers in Denver, Colorado right away about your concerns. Many claims have brief limitations periods that require employees to take action to preserve claims.

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