Employment Law Blog

2018 likely a big year for employment law in Colorado

We’re closing in on the end of the first quarter of 2018 which means the Colorado legislature is a little over halfway through its legislative session and the state courts are in full swing for the rest of the year. We’ve already seen a flurry of employment law activity in both the legislature and judiciary with more likely to come. Most employment law watchers have their eyes on the labor law appeals at SCOTUS but Colorado has a lot on the schedule for labor and employment law as well.

Colorado legislative employment law activity

Colorado is among several states where conservative lawmakers pursued bills seeking to undermine labor union presence and minimum wage protections. Thankfully in this state these bills appear dead for the session but other bills live on in the session. Among the labor and employment law legislation introduced this session include:

Immigration status. The House is currently perusing a bill to extend legal work status to undocumented workers in the state that meet specific requirements proving the worker’s history in this country has been positive.

FMLA insurance. Another House bill seeks to introduce an FMLA insurance program for wages. Under the proposed architecture small employee contributions would fund a wage replacement program for Colorado employees who take unpaid family and medical leave. Given the challenges created by the way the Colorado legislature designed its state FMLA statute to sit on top of the federal FMLA passage of this program could create new complications in the state’s family and medical leave law.

Non-compete exception for physicians. Physicians are generally better protected from overreaching non-compete agreements under Colorado law; however, they can be liable for damages caused by terminating the agreement. This Senate bill would create an exemption to damages for physicians to continue to provide care to patients with rare conditions.

Minimum wage waiver. In one of the more ridiculous legislative offerings a House representative offered a bill that would (1) require employers to notify job applicants of the right to negotiate minimum wage and (2) to negotiate a minimum wage less than the Colorado Constitution requires. The House committee quickly laughed at and destroyed this awful legislation.

Right to work bill. Not to limit their terribleness to just one bill, House Republicans introduced a bill to make Colorado a “right to work” state that allows workers to decline representation or membership in a union as a condition of employment. These bills are introduced by the GOP virtually every session but as usual this bill failed to reach a floor vote.

Gig workers are contractors. The Senate passed a bill last week that makes workers who find part-time jobs through online job marketplaces are contractors rather than employees. While many of these workers likely are contractors this bill seems more of a first step in expanding state law to make all workers in the gig economy contractors–surely a move backed by larger players in the field like Uber and Lyft who have been hit with misclassification lawsuits around the country.

Colorado courts employment law activity

If March is any indication how the Colorado Supreme Court feels about employment law it’s not a good sign for employees. This month Colorado’s highest court ruled against employee rights on small but important issues.

Teacher right to hearing before placement on unpaid leave overturned

The Colorado Supreme Court overturned an appeal on public school teacher rights to a hearing before being placed on unpaid leave. The teachers’ union asserted the Teacher Employment, Compensation and Dismissal Act of 1990 (TECDA) required a hearing before a teacher may be placed on unpaid leave. TECDA limits a teacher’s exposure to termination to specific reasons of just cause after a hearing, if the teacher completed the three year probationary period. The teachers’ union argued this created a due process right to a hearing on unpaid leave.

The court disagreed, holding that TECDA does not create a contract between the state and teachers, therefore the teachers lack a property interest in benefits and salary. Without a property interest the teachers do not have a violation of due process rights to assert. The result will be that school districts will obtain greater flexibility to eliminate teachers or force out teachers.

Statute of limitations on unpaid wage claims upon termination under the Colorado Wage Claim Act

In a case with broader implications, the Colorado Supreme Court also interpreted the Colorado Wage Claim Act (CWCA) to reduce the limitations period for claims of wages due upon termination. In Hernandez v. Ray Domenico Farms the court resolved the ambiguity over how far back an employee could seek unpaid wages due upon termination.

The CWCA sets a two year limitations period (extended to three if the violation is willful) for claims brought under the statute. (C.R.S. § 8-4-122.) Among the statutory claims is the right to be paid all due and unpaid wages upon termination. (C.R.S. § 8-4-109). The plaintiffs in this case, along with some Colorado courts, argued the limitations period reset with each instance of unpaid wages so the unpaid wages owed could extend as far back as the beginning of the employment relationship.

The Colorado Supreme Court disagreed, interpreting the CWCA similar to federal interpretations of limitations periods under the Fair Labor Standards Act (FLSA). The court held the limitations period only reaches back two years (or three if willful) before the date of termination. The court noted that the limitations period begins to run with each set of wages due; so it is possible that an employee could pursue a claim under C.R.S. § 8-4-109 as late as three years after the date of termination. The Supreme Court did not clarify this point but it appears to be the intended interpretation of the court’s opinion.

What should we expect for the rest of 2018?

The rest of the year will likely be a mixed bag for employees, particularly with the SCOTUS decisions that will weigh on federal labor law issues. As usual movement on the legislative and judicial fronts will be incremental with judicial decisions drawing narrow interpretations of existing statutes and employer-friendly lawmakers pushing through small changes. Most of these smaller changes receive little attention which allows a long but effective pro-employer shift in labor and employment law.

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

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.

Denver sexual harassment lawyers with free consultations

10th Circuit weighs in on work schedule conflicts in a religious accommodation

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of a sincere religious belief. Part of this employment discrimination protection requires employers to extend a reasonable accommodation to an employee’s sincere religious belief or practice. Whether an accommodation is “reasonable” within the boundaries of Title VII’s anti-religious discrimination prohibition remains not completely answered in the statute’s fifty-four year history. In Tabura v. Kellogg USA, No. 16-4135 (10th Cir. 2018) the Tenth Circuit weighed in on a case regarding a reasonable accommodation and schedule swapping as a reasonable accommodation.

Facts of Tabura v. Kellogg religious discrimination suit

In this case an employer’s non-discriminatory schedule change placed workers in a situation in which they became occasionally scheduled to work on their Sabbath and the accommodation offered by the employer did not avoid work on their religious holy day. Here are the factual allegations as summarized by the Tenth Circuit.

The plaintiffs in Tabura are employees at a Kellogg plant in Utah where in 2011 the employer restructured work schedules into twelve hour shifts on two or three days and then off for the same period, resulting in a rotating schedule each week. The plaintiffs are Seventh Day Adventists who have a sincere belief against working on the Sabbath, which begins Friday at sundown through Satuday at the same time. Due to the rotating schedule they would inevitably be scheduled through the Sabbath. Upon requesting an accommodation, Kellogg allowed them to use a combination of vacation time, sick time and schedule swapping to avoid work during the Sabbath.

Kellogg allows employees to swap shifts so long as it approves the shift and the shift conforms to their scheduling rules. These rules require the swapped employee to be qualified to perform the duties of the swapping employee. Additionally no employee may work more than thirteen straight hours so no employee working the prior shift could accept a swap. (Those employees worked during the Friday night part of the Sabbath.) As a result, the plaintiffs could not always find approved swaps. After months of absenteeism related to missed Sabbath shifts the plaintiffs were fired. They then filed a charge of discrimination on the basis of religious discrimination, failure to accommodate and retaliation.

Whether Kellogg provided a reasonable accommodation to the shift scheduling problem

The Tenth Circuit weighed in on the issue of reasonableness of the accommodation extended by Kellogg. The trial court granted summary judgment to Kellogg and the plaintiffs appealed only on the failure to accommodate. The Tenth Circuit reversed, noting that Kellogg conceded the plaintiffs made out a prima facie case for failure to accommodate and there was now a factual dispute whether, “Kellogg reasonably accommodated plaintiffs’ Sabbath observance and, alternatively, that Kellogg would incur an undue hardship if it further accommodated their religious practice.”

The panel mostly fell in favor of the plaintiffs’ arguments. It explained, “an accommodation will not be reasonable if it only provides plaintiff an opportunity to avoid working on some, but not all, Saturdays,” or merely to “delay their eventual termination.”  The panel did not go so far as to fully accept plaintiffs’ position that the employer must eliminate all burden to the employee or ensure the plaintiffs’ never received a Saturday shift–only that a reasonable accommodation exist when a shift is scheduled.

It also declined to accept plaintiffs’ position (supported by the EEOC) that a reasonable accommodation cannot be affected by a neutral policy made available to other employees–shift swapping. Had the plaintiffs’ successfully swapped all their Saturday shifts then they would have likely had little argument that the employer failed to accommodate. The panel, however, clarifies that it is not enough for an employer to extend a neutral policy to absolve its duty under Title VII to accommodate religious practices.

The panel went on to discuss the problems plaintiffs faced swapping schedules as raising fact questions precluding summary judgment. Generally the employees could only swap with a handful of employees who were free to decline the request and some had their own religious practices precluding them from swapping. The reversal notes that a jury could find that the difficulties dissolved the reasonableness of the accommodation and requires Kellogg to take a more active role in securing swaps. Lastly, the panel reversed summary judgment on the employer’s undue burden defense insisting the plaintiffs’ proposed alternatives were too costly because the employer failed to present evidence to their assertions or to even move for summary judgment on the issue.

(This case is also discussed by other employment law blogs such as here and here.)

What Tabura v. Kellogg may mean for Colorado employers and employees

This lawsuit is a good reminder that religious accommodation requests must be taken seriously and an employer’s assertion that an accommodation poses an undue burden requires a meaningful look at the facts rather than the superficial inconvenience.

Although we do not yet know what a jury will conclude about the reasonableness of the accommodation, we can take away the panel’s conclusion that a neutral employment policy is likely not a reasonable accommodation if the employees are unable to consistently use the policy to resolve the need for an accommodation. Many employers rely upon similar PTO and shift swapping schemes as a religious accommodation but should be sensitive to complaints by employees needing accommodations that the available PTO and swapping opportunities are not working and the employer may need to step in and actively manage the situation.

Colorado employees who require schedule modifications as a religious accommodation should also be aware of how the Tenth Circuit’s reversal here may affect their accommodation request. If an employee finds himself or herself unable to take approved leave or swap schedules then the employee should notify the Colorado employer through appropriate channels of the deficiency before the employer begins taking action due to absenteeism. That way the employer cannot claim to have lacked the opportunity to institute a reasonable accommodation. As always, if faced with the situation an employee should talk to a Denver employment lawyer early in the process.

 

 

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

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.

 

Denver marijuana employment laws

Colorado Lawmakers to Consider Prohibiting Marijuana-Related Employment Discrimination

Colorado made news in 2015 when the lawsuit involving Dish Network firing an employee for marijuana use was upheld by the Colorado Supreme Court. In 2012 Dish Network fired Brandon Coats, a paralyzed medical marijuana patient, for failing a drug test. He filed a lawsuit under Colorado Revised Statutes 24-34-402.5. The Colorado Supreme Court held the language of the statute prohibiting employers from terminating employees for engaging in lawful activity did not apply to conduct unlawful under federal law. Denver NORML is pushing for legislation to amend C.R.S. 24-34-402.5 to protect employees from termination for off-premises marijuana use.

 

Coats v. Dish Network

In Coats v. Dish Network the Colorado Supreme Court considered whether C.R.S. 24-34-402.5 protects activity lawful under state law but not federal law. This statute generally prohibits employers from firing or otherwise taking an adverse employment action against the employee on the basis of lawful activity during off-work hours. Under the statute employees can still be terminated for lawful activity during work hours. Coats argued through his attorney that Colorado had legalized his medical marijuana therefore his use was lawful. The Colorado Supreme Court took the opposite position holding that the statute did not prevent employers from taking action against an employee for activity that was unlawful under federal law.

Proposed legislation to change the outcome in future marijuana employment cases

Denver NORML proposes legislation that extends Colorado’s Unfair Employment Practices statute (C.R.S. 24-34-402.5) to protect employees from adverse employment acts by the employer for using marijuana off work hours or from testing positive for marijuana in a drug test. The proposed legislation will still allow employers to take action against an employee who uses marijuana at work or is under the influence of the drug at work. The advocacy organization will begin lobbying for the legislation this winter. The proposed statute is sure to find opposition from the business community in the state who expect a high degree of servitude from their employees. This proposed statute is similar to a law already enacted in Maine for the same purpose.

Contacting a Denver employment lawyer

If you believe your employer took adverse employment action against you on the basis of off duty activity then you should talk to a Denver employment lawyer right away. Employees in Colorado are generally protected from termination and other adverse employment acts on the basis of off-duty activities. Although for now partaking in marijuana is not protected by the Colorado Revised Statutes, it will likely only be a matter of time before Colorado employment law changes to align with the state’s legalization. State or federal law may provide other claims related to your off-duty activities. Contact a Denver employment lawyer to discuss your situation.

FMLA leave of absence

FMLA Turns 25 Today

On February 5, 1993 President Clinton signed the Family and Medical Leave Act guaranteeing unpaid medical leave to a large swath of employees. The law expanded and simplified protected leave rights under the Pregnancy Discrimination Act of 1978, the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, in addition to making protected unpaid medical leave available to workers for a broad range of medical issues unrelated to pregnancy or disability. FMLA has received a single amendment in its quarter century life to include protected leave to care for injured and ill servicemembers. However, greater opportunities exist to make protected family and medical leave available to more employees.

FMLA today

Although FMLA is now old enough to run for the House of Representatives there is still incredible pushback from employers. You don’t have to get far into a conversation with human resources professionals to start hearing about “FMLA abuse” in the same terms as tin foil hat conspiracies. Employers regularly continue to interfere with employee FMLA rights and retaliate against employees for requesting or taking FMLA leave. We cannot be too surprised. Employers still routinely violate other labor and employment laws, some more than 100 years old.

Denver FMLA lawyers

Room for FMLA to grow

Nevertheless, while FMLA was groundbreaking for its time, opportunities remain to expand the statute to help employees in vulnerable medical and family situations. Employers may not be completely on board with FMLA’s current protections but that is no reason to fail to expand FMLA and other leave protections.

Expanded family care

Employees remain unprotected, at least under federal law, for medical leave to care for family members under the employee’s care but not immediate family as defined by FMLA or to attend school meetings for their children. FMLA protects leave to care for spouses, children and parents only. Workers often provide care for other family members, such as grandchildren, grandparents, nieces and nephews. Under the current statutory protection, jobs remain vulnerable if an employee takes leave to care for these family members.

Reduce the required number of employees

FMLA also only protects employees of covered employers with fifty or more employees, which leaves a large portion of employees unprotected. Studies estimate around sixty percent of employees work for employers covered by the statute. Employees without FMLA protection must rely on state leave laws, other federal laws, or voluntary leave policies.

Domestic violence leave

The Family and Medical Leave Act does not provide employees protected leave to protect themselves from domestic violence. The statute protects eligible medical leave to receive medical care for domestic violence-related injuries but not to receive legal protection or obtain safety protections (such as changing locks on the home). Without these protections domestic violence victims may have to choose running away from their home and job to avoid harm. Expanding FMLA to include leave to protect employees from domestic violence would have the same benefits to employers and employees as other protected leave rights under the statute.

Paid family and medical leave

FMLA only protects unpaid leave–forcing many employees to balance medical needs against financial needs. The Family and Medical Leave Act allows employers to exhaust paid leave banks against FMLA leave periods but once employees exhaust their paid leave the remaining leave goes unpaid. For many workers weeks without pay can put the employee’s family in a financially precarious position. That leaves workers choosing between caring for their health or their family’s health and the family’s financial health. Often the only choice the employee can afford is the financial.

Colorado protected leave laws

Colorado laws provide expanded rights to employees within the state, although not to the full extent many advocate for FMLA. The Colorado Family Care Act expands FMLA rights to include similar leave protections to care for a wider range of family members. The Colorado FCA does not reduce the minimum number of employees for a covered employer but it expands the range of protected leave. Colorado law provides three days of protected leave to deal with domestic violence, stalking and sexual assault. (Colo. Rev. Stat. §24-34-402.7) There is additional room for Colorado law to grow but Colorado employees receive greater protection than many states where state law is silent.

Colorado FMLA lawyers

Under FMLA if an employer interferes with your right to protected leave or retaliates against you for taking FMLA leave then you can sue your employer to recover for damages suffered. Often FMLA lawsuits pursue recover of lost wages but you may recover other out of pocket losses, liquidated damages and attorney’s fees. If you believe your employer violated your employee rights under the statute then you should contact Colorado FMLA lawyers right away.

 

Colorado Sexual Harassment Laws

Colorado legislators hit with sexual harassment claims by staff and interns

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.