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Colorado employment laws new for 2021

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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.

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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.

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

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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.

Salary history not a defense to sex discrimination under Equal Pay Act according to the Ninth Circuit

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The Equal Pay Act is a federal law that prohibits pay discrimination on the basis of sex. Unlike Title VII and state anti-discrimination laws that prohibit sex discrimination in the workplace, the EPA only applies to compensation disparity between the sexes.

The federal Ninth Circuit issued its decision in a case involving the Equal Pay Act surrounding the use of salary history as a deciding factor in salary and wage rates. The Ninth Circuit ruled in Rizo v. Yovino that the use of salary history does not justify pay disparity between men and women, overturning its own precedent. This broad rule has employer-side employment lawyers around the country in a tizzy.

The details on Rizo v. Yovino

We won’t spend too much time on the facts in this case because the Ninth Circuit staked out a position far beyond the facts of the case but it helps to understand a little about how they got here. Rizo is a teacher hired as a math consultant with the Fresno School District. The school district sets pay on a salary system that sets a consultant’s starting salary as the consultant’s prior salary plus five percent. (Then the salary steps up at set intervals.)

Rizo, a woman, discovered the male consultants had higher starting salaries. The school district uniformly applied its salary system so the difference in pay between men and women all arose from the use of past salary as a starting point on the salary track. Rizo sued, alleging the pay disparity violated the Equal Pay Act.

Equal Pay Act and pay disparity

The Equal Pay Act was enacted in 1963 as an amendment to the Fair Labor Standards Act to prohibit wage disparity between men and women. The statute requires employers to pay men and women equal pay for work of the same skill, effort, responsibility and work conditions unless one of four exceptions apply. The Equal Pay Act exceptions allowing wage disparity are:

  1. A seniority system;
  2. A merit system;
  3. A system which measures earnings by quantity or quality of production; or
  4. A differential based on any other factor than sex.

The last exception is a catchall exception that allows for any other nondiscriminatory pay system. The Fresno School District argued, as many employer-side employment lawyers do in blogs discussing this case, that the exception applies because the system does not use sex as a factor.

Not so fast, said the Ninth Circuit.

The Ninth Circuit’s new rule on the Equal Pay Act

The Ninth Circuit looked at the statutory language and the legislative history behind the Equal Pay Act, deciding that if the purpose of the statute is to close the wage gap between men and women then it hardly makes sense to allow one employer to perpetuate a prior employer’s wage differential. The majority explained:

In light of the clear intent and purpose of the Equal Pay Act, it is … clear that we cannot construe the catchall exception as justifying setting employees’ starting salaries on the basis of their prior pay. At the time of the passage of the Act, an employee’s prior pay would have reflected a discriminatory marketplace that valued the equal work of one sex over the other. Congress simply could not have intended to allow employers to rely on these discriminatory wages as a justification for continuing to perpetuate wage differentials.

The majority continued to clarify that the catchall exception, as many circuits agree, requires the nondiscriminatory factors to be job-related (not just business-related). It held that prior salary is not within the catchall because it does not act as a reasonable proxy of an applicant’s or employee’s skills or expertise. The majority continues:

Prior salary does not fit within the catchall exception because it is not a legitimate measure of work experience, ability, performance, or any other job-related quality. It may bear a rough relationship to legitimate factors other than sex, such as training, education, ability, or experience, but the relationship is attenuated. More important, it may well operate to perpetuate the wage disparities prohibited under the Act. Rather than use a second-rate surrogate that likely masks continuing inequities, the employer must instead point directly to the underlying factors for which prior salary is a rough proxy, at best, if it is to prove its wage differential is justified under the catchall exception.

The Ninth Circuit therefore established a rule that prior salary is almost never an acceptable factor to establish a wage differential between the sexes.

[W]e now hold that prior salary alone or in combination with other factors cannot justify a wage differential. To hold otherwise—to allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum—would be contrary to the text and history of the Equal Pay Act, and would vitiate the very purpose for which the Act stands.

The court left the door cracked for some situations in which prior salary might be an appropriate factor but did not specify in great detail what they are.

Bottom line: As far as the Ninth Circuit is concerned employers should not establish policies that rely on past salary as a factor to set initial wages or salary.

The impact?

Employer-side employment lawyers dumped an avalanche of blog posts last week bemoaning the outcome of this case. (You can read some here, here, here, here, here and here.) The Ninth Circuit’s holding is definitely broad as all of these lawyers complain but breadth by itself is not a reason why the holding is wrong.

Prior salary has nothing to do with an employee’s qualifications to perform a given job. Whether an applicant was paid more than another could be a reflection of performance but the employer has no way to confirm the extent performance affected pay rate over other factors such as cost of living differentials, a seniority system, labor market conditions, or sex discrimination.

An employer who adopts an applicant’s prior salary implicitly adopts all of the reasons–good or bad–for the wage disparity.

I suspect this broad interpretation will make its way to the Supreme Court because it disagrees with several circuits and even the EEOC. Given the conservative majority on SCOTUS I find it improbable that the majority will rule against giving employers the opportunity to make business-friendly salary decisions.

For now, at least, employers within the Ninth Circuit should talk to their employment lawyers about their employment policies under this decision.

The decision in Rizo is part of a set of cases brought across several federal circuits over the catchall exception. Circuits around the country have taken a less than liberal position towards employers but, unsurprisingly, the Ninth Circuit provides employees the greatest help.

Ultimately I expect the Supreme Court will adopt a position closer to the Tenth and Eleventh Circuits that allow employers to consider past salary as a factor but not as a sole factor justifying a wage differential.

How this affects Colorado employees

Like other appellate decisions discussed here outside of the Tenth Circuit this case has no direct impact on our employees. Nevertheless, the way the Supreme Court handles the rule set out in this case could change Equal Pay Act analysis in this circuit and require employers to make changes to policies.

Enterprising employment lawyers might take up similar cases and see if the Tenth Circuit in Denver wants to agree with its colleagues in San Francisco but it’s highly unlikely.

Here the Tenth Circuit rule is that prior salary cannot by itself justify a wage disparity but prior salary can be a factor in setting wage and salary for employees. The court here sets a high burden on the employer to prove it meets the catchall exception.

Its summary judgment standard for employers requires the employer to prove the prior salary policy not only could justify the wage disparity but that it does justify it. If the Supreme Court hears an Equal Pay Act case on prior salary it may rule otherwise; but for now employees have some protection from sex discrimination passing from one employer to the next in Colorado.

As always, if you believe your Colorado employer discriminates in pay on the basis of sex then you should talk to an employment lawyer right away. Delaying talking to an employment lawyer can result in losing opportunities to recover for discriminatory pay systems because each paycheck carries its own statute of limitations.

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Bill O’Reilly sexual harassment settlements to be revealed

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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:

  1. Mackris must deny the validity of the allegations and insist they are false, even under oath; and
  2. 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

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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

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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.

Are tides changes in favor of prohibiting sexual orientation discrimination under Title VII?

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The last several years questions have renewed whether sexual orientation discrimination may be a form of sex discrimination prohibited by Title VII. For most of Title VII’s history federal courts have said no.

Recently the federal Seventh Circuit changed its mind and became the first court of authority to say yes.

Last month a full panel of the Second Circuit reversed its prior decisions and held sexual orientation discrimination is an unlawful form of sex discrimination under Title VII.

While this may not have a substantial impact for Colorado employees it certainly moves the nation closer to a Supreme Court opinion on the matter.

Title VII and sexual orientation discrimination

Title VII of the Civil Rights Act of 1964 (here) prohibits discrimination on the basis of sex. Initially this discrimination prohibition was used to put an end to employment practices that blocked women from jobs and promotions in addition to sexual harassment.

Over time courts expanded the statute’s role to prohibit discrimination related to gender and sex stereotypes–Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)–and eventually accepted that the statute prohibits same-sex harassment–Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).

However, federal courts generally have continued to hold that Title VII does not apply to discrimination on the basis of sexual orientation. In recent years the Seventh Circuit became the first appellate court to rule Title VII does cover sexual orientation discrimination while the Eleventh Circuit declined to rule of the question in 2017.

The EEOC moved in 2015 to formally adopt the position favoring inclusion of sexual orientation within Title VII but that position is not mandatory for federal courts.

The failure to include sexual orientation within Title VII drew some states to specifically include sexual orientation within its anti-discrimination statutes. For example, the Colorado Anti-Discrimination Act specifically prohibits sexual orientation discrimination in the workplace.

Second Circuit changes its mind on Title VII and sexual orientation discrimination

At the end of February a full panel of the Second Circuit delivered a sixty-nine page decision on Title VII and sexual orientation discrimination, reversing its prior opinion denying Title VII protection.

The underlying case is a fairly standard sexual orientation case. The plaintiff, a homosexual male employee, alleged he was discharged because he was openly gay and did not avoid the subject in the workplace. The employer alleged the discharge related to customer complaints. (Zarda v. Altitude Express)

At the district court the employer moved to dismiss and the court granted dismissal under then-current precedent. A panel of the Second Circuit affirmed. When the plaintiff sought an en banc review the appellate court made the unusual decision to agree. The product of the en banc convention of the court resulted in overturning its prior precedent and protecting sexual orientation under Title VII.

In its lengthy opinion the majority’s position might best be summed up by the following quote (clipped by an excellent employment law blog here):

Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor. . . . Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account. Sexual orientation discrimination is also based on assumptions of stereotypes about how members of a particular gender should be, including to whom they should be attracted. Finally, sexual orientation discrimination is associational discrimination because an adverse employment action that is motivated by the employer’s opposition to association between members of particular sexes discriminates against an employee on the basis of sex.

What this means for Colorado employees facing sexual orientation discrimination

Eventually SCOTUS will be set up to resolve a circuit split among the federal appellate courts whether Title VII prohibits sexual orientation discrimination. The Second Circuit is not binding on Colorado courts and the Tenth Circuit, which oversees the federal District of Colorado,  has yet to rule on the issue.

Until the Tenth Circuit or SCOTUS weigh in favor of accepting sexual orientation discrimination as a form of sex discrimination under Title VII, it must be assumed the federal courts here will not rule differently.

It may take time before the federal appellate courts create enough of a divide in the law that SCOTUS feels compelled to wade into the conflict. The more state statutes prohibit sexual orientation discrimination the fewer people need to rely upon Title VII as a remedy and therefore the less SCOTUS needs to act to resolve what may otherwise be mostly a philosophical issue among the courts.

My belief is that by the time SCOTUS accepts a case on the subject public opinion will support including sexual orientation discrimination under Title VII that the court will no longer accept it as controversial and concede the inclusion–much like the court’s approach to same sex marriage in Obergefell.

However, for Colorado employees a change in interpretation of Title VII will do little because the state anti-discrimination law already prohibits sexual orientation as an unlawful form of employment discrimination.

Employees harassed or otherwise discriminated against on the basis of sexual orientation may already pursue claims under state law that closely mirror the remedies under federal law.

A Denver employment lawyer may always want more arrows in the quiver and welcome a Title VII claim; but employees in Colorado do not have to wait pursue these claims until the federal courts act.

If you believe you suffered sexual orientation discrimination in a Colorado workplace then you should contact a Colorado employment law attorney right away. Remember that sexual orientation discrimination, like other forms of sex discrimination, do not only exist under a single dynamic.

While many instances of this form of workplace discrimination target LGBT employees and applicants, it is no less appropriate to discriminate against an employee who is straight or for an LGBT manager to discriminate against an LGBT employee or applicant.

Colorado Sexual Harassment Laws

Colorado legislators hit with sexual harassment claims by staff and interns

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This week Colorado state representative Steve Lebsock met his third sexual harassment allegation by workers for the legislature. He is among the four Colorado legislators currently facing sexual harassment allegations by legislative staff.

As the #metoo movement has given employees the space to bring forward sexual harassment allegations against people in position of power, we are likely to see a continuing flow of allegations against politicians and their circles of power.

As these public cases of workplace harassment continue to appear they will continue to create space for employees of private business to come forward with allegations of sex discrimination in the workplace and raise both internal and external complaints.

Colorado employees who believe they suffered sexual harassment should contact Colorado employment lawyers right away.

Colorado workplace harassment laws

Sexual harassment, like other forms of workplace harassment, is unlawful under federal and Colorado employment law. Title VII of the Civil Rights Act of 1964 prohibits sex discrimination at work, including harassment. The Colorado Anti-Discrimination Act similarly prohibits sex discrimination in the workplace. (Colorado Revised Statutes C.R.S. 24-34-401 et seq.)

Sexual harassment occurs when an employer creates an environment involving severe or pervasive unwelcome and offensive conduct. People often consider sexual harassment to include sexual contact or advances; however, sexual harassment can occur by making sexual or romantic comments without any touching, requests, or offers.

Colorado employees may suffer two types of sexual harassment: quid pro quo and hostile work environment. Quid pro quo harassment occurs when an employer requires an employee to submit to a sexual or romantic request in exchange for work condition. That might include gaining a promotion or raise or avoiding a demotion or termination.

A hostile work environment occurs when the workplace is made toxic by unwelcome and offensive sexual content, such as sexual advances, touching, comments, gestures and other sexual content in the workplace.

Sexual harassment complaints in the workplace

Employees suffering sexual harassment in the workplace may raise internal or external complaints. Which path an employee takes and when the employee complains may be extremely important to a later sexual harassment lawsuit in Colorado.

Most Colorado employers have an internal process for filing discrimination complaints to human resources or an open door policy that makes any supervisor a recipient of a complaint.

Employees may feel uncomfortable with these complaints because it requires publicizing an uncomfortable experience to parts of the company that may be more aligned with the perpetrator than the victim.

However, due to Supreme Court cases in the late nineties, it is sometimes necessary to raise an internal complaint.

Employees may also file external complaints with federal and Colorado anti-discrimination agencies. These complaints may go to the EEOC Colorado office in Denver or the Colorado Civil Rights Division. (Complaints will cross-file between the agencies in most cases.) The EEOC and CCRD can investigate complaints of sexual harassment in Colorado and help employees resolve workplace harassment.

Workplace harassment lawyers in Colorado

Employees suffering sexual harassment in the workplace should contact Colorado employment lawyers immediately. There are several reasons why employees should contact an employment attorney right away. These include:

Your employment lawyer can advise you how to deal with a bad situation before it gets worse

You may be in a position where a hostile work environment is emerging but has not become so severe or pervasive that it is time to move towards a lawsuit. Your Colorado employment discrimination lawyer can advise you on how to handle the situation to try to deescalate the situation and when it is the right time to take action. Scheduling a consultation with an employment law attorney early in the process gives you an opportunity for professional help at every step of the process.

Internal discrimination complaints may be necessary

Although it is often difficult to expose a coworker or manager’s harassment, a legal claim against the employer may require an internal complaint. Your employment lawyer can review whether the complaint is necessary and if so, make sure you make the request to the right part of the company.

Complaints to the EEOC and CCRD must occur within a specific timeframe

A major problem with harassment and other discrimination lawsuits arises when employees fail to file timely complaints with the EEOC or CCRD. Failure to file a timely complaint bars a later lawsuit on the same disgusting conduct.

EEOC and CCRD complaints must include the right details about the harassment

Colorado employment lawyers also find problems in harassment lawsuits when the EEOC and CCRD complaints lack the necessary details. These complaints form the beginning of the litigation process. Missing information may impair a later lawsuit even if the employee timely files a complaint.

Employment lawyers can build your case through the entire process

Hiring a Denver employment lawyer late in the process means the lawyer must deal with the situation as it is rather than working with you to build a strong position. The employer or its attorneys may have taken steps to weaken your case.

Often employees enter into mediation or informal settlement discussions without knowledge of the real value of the harm suffered by the harassment. Your Colorado employment discrimination lawyer can help you understand and pursue what you deserve.