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

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.

EEOC Lawyer

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.

Employment discrimination lawyer Denver

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.

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.