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EEO - Discrimination: Colorado

EEO - Discrimination requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Authors: Stuart R. Buttrick, Thomas W. Carroll, Susan W. Kline and Mary L. Will, Faegre Baker Daniels LLP

Summary

  • The Colorado Anti-Discrimination Act (CADA) is similar to Title VII and applies to all public and private employers except certain religious employers. See Discrimination Under the Colorado Anti-Discrimination Act.
  • The CADA prohibits unfair and discriminatory practices on the basis of disability, race, creed, color, sex, sexual orientation, religion, age, national origin, ancestry and marital status. See Discrimination Under the Colorado Anti-Discrimination Act.
  • The CADA also provides that Colorado employers that are subject to the National Labor Relations Act may not discriminate or take other adverse action against an employee because the employee inquired about, disclosed, compared or otherwise discussed the employee's wages. Such employers cannot require nondisclosure of wage information of their employees or require employees to waive their right to disclose their wage information. See Discrimination Under the Colorado Anti-Discrimination Act.
  • The bona fide occupational qualification defense is available in some circumstances, and the Colorado Supreme Court has recognized the business necessity defense. See Defenses.
  • The CADA requires posting of notices and recordkeeping. See Employer Requirements and Practices.
  • The CADA may be enforced by either the Colorado Civil Rights Division or through a private lawsuit; however, an individual must exhaust administrative remedies before bringing a lawsuit. See Enforcement.
  • Colorado's Lawful Off-Duty Activities law prohibits employers from terminating an employee for engaging in any lawful activity off the premises of the employer and during nonworking hours. See Discrimination Based on Lawful Off-Duty Activities.
  • Colorado also has laws pertaining to domestic violence leave, equal pay and military status leave and discrimination. See Discrimination Against Victims of Domestic Violence; Equal Pay; Discrimination Based on Military Status.
  • Localities including Boulder and Denver have requirements pertaining to discrimination. See Local Requirements.
  • Discrimination Under the Colorado Anti-Discrimination Act

    The Colorado Anti-Discrimination Act (CADA) prohibits employers and employment agencies from discriminating on the basis of disability, race, creed, color, sex, sexual orientation, religion, age, national origin or ancestry. +C.R.S. 24-34-401. The CADA is intended to mirror Title VII and is frequently interpreted with reference to federal law. However, the CADA is broader than Title VII. For example, the CADA protects more classes of employees than Title VII by prohibiting discrimination on the basis of sexual orientation, creed, ancestry and marital status. The Colorado Civil Rights Division (CCRD) is responsible for enforcing the CADA.

    Coverage

    The CADA's definition of employer includes both public and private employers and applies to employers regardless of size. Unlike Title VII, which generally only applies to employers with 15 or more employees, the CADA applies to all employers except religious organizations and associations that do not receive support from tax money or public borrowing. There is no exception from CADA coverage based on number of employees.

    The CADA does not, however, apply to religious organizations and associations that do not receive support from tax money or public borrowing. +C.R.S. 24-34-401(3). The CADA also exempts religious entities, whether organizations, associations, educational institutions or societies, with respect to hiring individuals of a certain religion to perform work connected to the religious entities' activities. +C.R.S. 24-34-402(6).

    Employment agencies and labor organizations are also covered by the CADA. +C.R.S. 24-34-401; +C.R.S. 24-34-402.

    The CADA is written broadly enough to provide for individual liability, but there are no reported cases imposing individual liability and it is unlikely that individual liability would be imposed under Colorado law. In general, employers are liable for the acts of their employees that violate CADA.

    Discriminatory or Unfair Practices

    The CADA prohibits discriminatory and unfair practices. Employers may not do the following on the basis of disability, race, creed, color, sex, sexual orientation, religion, age, national origin or ancestry:

    • Refuse to hire;
    • Discharge;
    • Promote or demote;
    • Harass during the course of employment; or
    • Discriminate in matters of compensation, terms, conditions or privileges of employment.

    +C.R.S. 24-34-402(1)(a).

    The CADA also prohibits discriminatory advertisements, publications and employment inquiries on the basis of the recognized protected classes under the CADA. +C.R.S. 24-34-402(1)(d).

    Boulder and Denver have local requirements pertaining to discrimination. See Local Requirements.

    Use of Employment Agencies

    Employers may not refuse to hire or otherwise discriminate against a person solely because the person did not apply for employment through an employment agency. Employers do not violate the CADA if they use employment agencies as the exclusive source of personnel and no employment fees are charged to employees hired as a result of having to use the employment agency or agencies. +C.R.S. 24-34-402(1)(g).

    Provisions Regarding Married Employees

    Employers are prohibited from terminating or refusing to hire an employee that is married to or plans to marry another employee unless the employer has 25 or fewer employees, the spouses supervise one another or they are responsible for money together. +C.R.S. 24-34-402(1)(h); See Marital Status.

    Protected Classes

    Age Discrimination

    Although the CADA generally prohibits age discrimination, it is permissible under any of the following circumstances:

    • The employee is under 40 years of age;
    • Age is a bona fide occupational qualification reasonably necessary to the employer's normal operation;
    • To observe the terms of a seniority system or employee benefit plan such as a retirement, pension or insurance plan, as long as they are not "subterfuge to evade the purposes of [the CADA]"; or
    • The forced retirement of certain executive or high-level policy-makers who are 65 or older and under 70 if the employee is entitled to an immediate nonforfeitable annual benefit of at least $40,000 per year.

    +C.R.S. 24-34-301(1); +C.R.S. 24-34-402(4).

    Federal cases interpreting the Age Discrimination in Employment Act, or ADEA, are persuasive authority when considering age discrimination under the CADA. See George v. Ute Water Conservancy Dist., +950 P.2d 1195 (Colo. 1997).

    Disability Discrimination

    Employers may not discriminate against a person who is otherwise qualified because of that person's disability. +C.R.S. 24-34-402(1)(a). Under the CADA, disability is defined as a physical or mental impairment that substantially limits one or more of a person's major life activities, a record of such an impairment or being regarded as having such an impairment. +C.R.S. 24-34-301(2.5); see AT&T Techs., Inc. v. Royston, +772 P.2d 1182 (Colo. App. 1989). Mental impairment does not include the illegal use of or addition to a controlled substance. +C.R.S. 24-34-301(2.5). HIV/AIDS is treated as a disability under Colorado antidiscrimination law. An individual is otherwise qualified if, with reasonable accommodation, the individual can perform the reasonable, legitimate and necessary functions of the job. See AT&T Techs., Inc. v. Royston, +772 P.2d 1182 (Colo. App. 1989).

    It is not an unfair or discriminatory practice for an employer to take the employment actions on the basis of disability if each of the following is true:

    • There is no reasonable accommodation that the employer can make with regard to the disability;
    • The disability actually disqualifies the person from the job; and
    • The disability has a significant impact on the job.

    +C.R.S.24-34-402(1) (a).

    CADA's disability provisions largely track the Americans with Disabilities Act (ADA), and the CCR stated that interpretation of the CADA concerning disability shall follow federal regulations and case law interpreting the ADA. +3 CCR 708-1(60.1). Neither the CCRD nor Colorado courts have stated whether the CADA shall follow the Americans with Disabilities Act Amendments Act.

    Colorado law also generally prohibits employers from discriminating against employees who have assistance dogs and requires that employees be allowed to bring assistance dogs to work absent undue hardship. +C.R.S. 24-34-803(3).

    Changes to Colorado Disability Law

    The Colorado Anti-Discrimination Act (CADA) has changed its definitions relating to disabilities to better align with the definitions under the federal ADA.

    The definitions of disability individual with a disability, and service animal now have the same meaning as set forth in the ADA and the ADAAA. Penalties are also increased for violations of the rights of an individual with a disability who uses a service animal and penalizes those who cause harm to service animals. +C.R.S. 24-34-301;+C.R.S. 24-34-803; +C.R.S. 24-34-804.

    Because the scope of the CADA is broader than that of the ADA (i.e., the CADA extends to all persons, other than religious institutions, that employ people within the state, in contrast to the ADA's coverage of employers with 15 or more employees - see Disabilities (ADA)), smaller Colorado employers should review their policies related to disability accommodation to ensure they conform to the new definitions under the CADA.

    Pregnancy and Sex Discrimination

    Discrimination on the basis of pregnancy may constitute sex discrimination under the CADA. See Civil Rights Comm'n v. Travelers Ins., +759 P.2d 1358 (Colo. 1988) (finding sex discrimination where insurance policy excluded disability coverage for normal pregnancies). The CCRD takes the position that any employment policy that excludes applicants from employment because of pregnancy is discriminatory. +3 CCR 708-1(80.6).

    The Colorado Pregnant Workers Fairness Act amends the CADA and requires an employer to accommodate pregnant individuals and comply with new posting and notification requirements. The amendment applies to all Colorado employers, even those with only one employee. Specifically, Colorado will require an employer to accommodate medical conditions and limitations stemming from pregnancy that may not necessarily be considered disabilities under the Americans with Disabilities Act (ADA) if doing so would not cause an undue hardship. Further, an employer will be required to engage in a timely, good-faith, and interactive proces with individuals experiencing pregnancy or childbirth related medical conditions to determine effective reasonable accommodations.

    Reasonable accommodations may include:

    • Transfer to a light duty position (if available);
    • Longer or more frequent breaks;
    • Easier access to water;
    • Modified work schedules;
    • Assistance with manual labor; and
    • Alternate on-the-job seating arrangements.

    An employer may not require an employee to take leave if it can provide another reasonable accommodation. An undue hardship is defined as an action requiring significant difficulty or expense to the employer.

    When assessing whether an accommodation imposes an undue hardship, consider the following:

    • The nature and cost of the accommodation;
    • The employer's overall financial resources;
    • The overall size of the employer's business (the number of employees and the number, type, and location of available facilities); and
    • The accommodation's effect on expenses and resources or on the employer's operations.

    An employer also may not take an adverse action or deny an employment opportunity to an applicant or employee requesting or utilizing an accommodation. An adverse action is any action a reasonable employee would find materially adverse such that it would dissuade a reasonable worker from making or supporting a charge of discrimination.

    An employer is required to provide current employees with written notice of their rights by December 8, 2016. Further, an employer is required to provide written notice to all new hires at the start of employment. An employer is required to post a written notice in a conspicuous place in an area accessible to employees.

    Employees who are denied accommodations may bring a failure to accommodate claim and may be awarded damages under CADA. +2016 Bill Text CO H.B. 1438.

    See Pregnancy Accommodations.

    Religious or Creed Discrimination

    Religious organizations, whether organizations, associations, educational institutions or societies are exempt from the CADA with respect to hiring individuals of a certain religion to perform work connected to that entity's activities. +C.R.S. 24-34-402(6). The CCR published guidelines, or a workable set of standards, to help employers determine whether certain policies discriminate on the basis of creed or religion. +3 CCR 708-1 (50.1) Principally, the guidelines communicate the CCRD's belief that employers should make reasonable accommodations for creed and religious needs, for example observance of the Sabbath or religious holidays, where such accommodation is possible without enduring undue hardship.

    Sexual Orientation

    The CADA prohibits discrimination on the basis of sexual orientation, which is broadly defined to include "a person's orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or an employer's perception thereof." +C.R.S. 24-34-401. The CCRD issued rules that further interpret the protections for sexual orientation. +3 CCR 708-1(81.1). Although the CADA states that employers may have a reasonable dress code, as long as it is applied consistently, +C.R.S. 24-34-402(5), the CCRD's rules prohibit employers from requiring an individual to dress or groom in a manner inconsistent with the individual's gender identity or innate sense of gender. +3 CCR 708-1(81.2). The regulations also require employers to let individuals use whichever gender-segregated facility (bathroom, locker room, etc.) is consistent with the individuals' gender identity and to make reasonable accommodations where undressing in the presence of others occurs.

    The Colorado Civil Union Act (Civil Union Act) recognizes civil unions entered into by same-sex and opposite-sex couples and provides that civil union partners have the rights and responsibilities granted to spouses, including, among other things, family leave benefits under state law. +C.R.S. 14-15-101; +C.R.S. 14-15-103; +C.R.S. 14-15-104; +C.R.S. 14-15-105; +C.R.S. 14-15-106; +C.R.S. 14-15-107; +C.R.S. 14-15-108; +C.R.S. 14-15-109. This law could have a significant impact on workplace policies regarding sexual orientation discrimination and benefits for same-sex spouses.

    On June 26, 2015, the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. . See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Even though gender identity and sexual orientation are not explicitly recognized as protected classes under federal law, in light of this ruling it is best practice for an employer to review and revise its discrimination policies and provide equal treatment to individuals in same-sex marriages with regard to leave, benefits, compensation and other terms of employment.

    Marital Status

    Employers generally are prohibited from terminating or refusing to hire an employee that is married to or plans to marry another employee. +C.R.S. 24-34-402(1) (g). However, the prohibition does not apply:

    • To employers with 25 or fewer employees;
    • Where one spouse will have the power to directly or indirectly supervise, appoint, dismiss or discipline the other; or
    • Where one spouse will audit, verify, receive or be entrusted with money received or handled by the other.

    Defenses

    Bona Fide Occupational Qualification

    The CADA does not provide a general bona fide occupational qualification (BFOQ) defense for employers like Title VII does. However, there are three specific situations under CADA where a BFOQ allows actions that would otherwise be prohibited:

    +C.R.S. 24-34-402.5.

    The Colorado Court of Appeals has held that there is no BFOQ defense for a CADA claim based on disability. See Colo. Civil Rights Comm'n v. ConAgra Flour Mill Co., +736 P.2d 842 (Colo. App. 1987).

    Business Necessity

    The Colorado Supreme Court has stated that business necessity defense is available to employers in employment discrimination cases. See Colo. Civil Rights Comm'n v. N. Wash. Fire Protection Dist., +772 P.2d 70 (Colo. 1989). However, the business necessity defense has not been cited or further developed under Colorado law since that case.

    Additional defenses may be available depending on the specific facts and circumstances of any given case.

    Employer Requirements and Practices

    Postings of Notices

    Employers, employment agencies, labor organizations and places of public accommodation, amusement and resort must post a notice furnished by the CCRD. The notice must be posted conspicuously and in easily accessible and well-lighted places customarily frequented by employees and applicants. +3 CCR 708-1(20.1).

    Recordkeeping

    The CCRD requires the retention of certain records during processing of a charge or complaint under the CADA. The CCRD requires relevant records be kept until the charge or complaint has been finally resolved and the statutory time periods for appeals have expired. Relevant records include:

    • Personnel or employment records relating to the charging party or complainant and to all employees holding similar positions to the one the charging party or complainant held or sought;
    • Application forms or test papers of all candidates for the positions;
    • Registration records;
    • Offers, leases and contracts; and
    • Correspondence, business records, etc.

    +3 CCR 708-1 (20.5). Failure to comply with the CCRD retention rule can lead to a rebuttable presumption by the agency or hearing officer that the records contained information adverse to the interests of the party. That is, the CCRD will assume the worst as to what a missing document may have contained. However, the party will have a chance to submit other information disputing that assumption.

    Enforcement

    CCRD Enforcement

    The CCRD is a state agency under the Department of Regulatory Agencies that is responsible for enforcing the CADA. Within the CCRD is the Colorado Civil Rights Commission (Commission), which has seven members appointed by the governor and is responsible for adopting rules interpreting the CADA and for holding formal hearings regarding violations of the CADA. An allegedly aggrieved individual, the Commission, any commissioner or the attorney general may initiate a charge of discrimination, which is then investigated by the CCRD. Any charges must be filed within six months after the allegedly discriminatory conduct occurred. +C.R.S. 24-34-403. The CCRD may subpoena information and testimony, interview witnesses, inspect records, require the employer's response and hold hearings in the course of its investigation and determination. The remedies the CCRD may impose are discussed below. +C.R.S. 24-34-306.

    Judicial Proceedings

    If an individual requests a right-to-sue letter from the CCRD, or if the CCRD does not serve notice of a hearing or conduct a hearing within times prescribed by the CADA, an individual may bring a civil action. +C.R.S. 24-34-306(11). Prior to bringing a lawsuit, an individual must exhaust administrative remedies through the CCRD unless the individual's health is so bad that pursuing administrative remedies would cause irreparable harm. +C.R.S. 24-34-306(14).

    An individual's sole recourse for a violation of the lawful off-duty activities statute is a suit for damages in district court and plaintiffs are not required to exhaust administrative remedies through the CCRD. +C.R.S. 24-34-402.5(2)(a); see Galvan v. Spanish Peaks Regional Health Ctr., +98 P.3d 949 (Colo. App. 2004).

    Remedies

    In addition to ordering an offender to cease and desist from any discriminatory or unfair practices, the CCRD may order the following affirmative actions:

    • Paying back pay;
    • Hiring, reinstating or upgrading of employees, with or without back pay;
    • Referring of applicants for employment by an employment agency;
    • Restoring membership to a labor organization;
    • Admitting or allowing the individual to continue in an apprenticeship, training or vocational program;
    • Posting of notices; and
    • Making of reports as to the manner of compliance.

    +C.R.S. 24-34-405. Plaintiffs in a civil action may seek the same relief, but they are not entitled to a jury, attorneys' fees or costs. See Cont'l Title Co. v. Dist. Court, +645 P.2d 1310 (Colo. 1982).

    Damages in Discrimination Lawsuits

    Under a new Colorado law, employees are permitted obtain increased damages in discrimination lawsuits against small employers. Specifically, employees who bring employment discrimination lawsuits against small employers with 14 or fewer employees additional remedies of compensatory and punitive damages, and attorneys' fees. +C.R.S. 24-34-405. Under the previous law, employees of small employers were only able to obtain back pay, front pay, and reinstatement. With respect to employers with 15 or more employees, the new law states that the total amount of compensatory and punitive damages shall not exceed the amounts specified under federal anti-discrimination laws. The new law applies to causes of action alleging discriminatory or unfair employment practices accruing on or after January 1, 2015.

    The law also contains some limited protections for employers as it caps the total compensatory and punitive damages awards at $10,000 for employers with four or fewer employees and $25,000 for employers with between five and 14 workers. Further, an employee must prove that the discrimination was intentional and compensatory and punitive damages are not available in disparate impact cases. Colorado courts are required to consider the size and assets of the employer and the egregiousness of the employment practice at issue in determining the appropriate amount of compensatory and punitive damages to award. Punitive damages are not available if the employer is able to demonstrate that it made a good faith effort to prevent any discriminatory and unfair employment practices. Additionally, in cases alleging a failure to accommodate based on disability, punitive damages are not available if the employer can show that it made a good faith effort to identify and make a reasonable accommodation that would provide the employee with a disability an equally effective opportunity and would not cause an undue hardship on the operation of the employer's business. When a plaintiff claims compensatory or punitive damages, either party is entitled to demand a jury trial. Additionally, a court may award the prevailing plaintiff reasonable attorneys' fees and costs and, if the court finds that the action was frivolous, groundless or vexatious, the court may award attorneys' fees and costs to the defendant.

    Discrimination Based on Lawful Off-Duty Activities

    Colorado's lawful off-duty activities law prohibits an employer from terminating an employee "due to the employee engaging in lawful activity off the premises of the employer during nonworking hours" unless the activity relates to a bona fide occupational qualification or the termination is necessary to avoid a conflict of interest to the employer or the appearance of such a conflict. +C.R.S. 24-34-402.5. The lawful off-duty activities statute thus requires a two-part analysis:

    • Did the employer terminate an employee for a lawful activity, for example smoking; and
    • Was there a statutory exception to justify the termination.

    See Gwin v. Chesrown Chevrolet, Inc., +931 P.2d 466 (Colo. App. 1996).

    Remedies and Damages

    An individual's sole recourse for a violation of the lawful off-duty activities statute is a suit for damages in district court; there are no administrative remedies. The statute of limitations is two years. +C.R.S. 24-34-402.5(2)(a); see Galvan v. Spanish Peaks Regional Health Ctr., +98 P.3d 949 (Colo. App. 2004).

    Attorneys' fees and costs are available to the plaintiff for violations of the lawful off-duty activities law as long as the employer had more than 15 employees during each of 20 or more work weeks in the current or preceding calendar year. +C.R.S.24-34-402. For violations of the lawful off-duty activities statute, a plaintiff may sue for damages, including all wages and benefits that would have been due had the employee not been terminated for lawful off-duty activities. The plaintiff must mitigate damages. +C.R.S. 24-34-402.

    Discrimination Against Victims of Domestic Violence

    Certain Colorado employers are required to grant employees up to three days' leave per 12-month period if the employee is seeking to protect himself or herself from domestic abuse or violence, stalking or sexual assault. This provision only applies to employers with 50 or more employees and to employees who have been employed by the employer for 12 months or more. Covered employers cannot terminate, retaliate against or otherwise discriminate against employees who exercise their rights under the statute. +C.R.S. 24-34-402.

    Equal Pay

    The Colorado Wage Equality Regardless of Sex Act forbids discrimination in the amount of wages or compensation solely on the basis of sex. +C.R.S. 8-5-101. The Department of Labor and Employment's Division of Labor Standards and Statistics (Division) has the power to administer and enforce the provisions of the Wage Equality Regardless of Sex Act. Employers must make their records open to inspection by the Division. +C.R.S. 8-5-105.

    An employer who violates the Wage Equality Regardless of Sex Act is liable to an employee for the difference between what the employee was paid and what the employee would have been paid absent the unlawful discrimination. In the case of willful violations, an employee may be awarded up to double the amount of actual damages. +C.R.S. 8-5-104.

    Colorado has significantly expanded its equal pay law, enhanced wage transparency requirements, restricted salary history inquiries and impose notice requirements in an effort to prevent pay disparities, see Future Developments.

    Wage Disclosure

    Pursuant to the Wage Transparency Act, an employer may not discharge, discipline, discriminate against, coerce, intimidate, threaten, or interfere with any employee or other person because the employee inquired about, disclosed, compared, or otherwise discussed the employee's wages. Also, an employer may not require as a condition of employment nondisclosure by an employee of his or her wages or require an employee to sign a waiver or other document that attempting to deny an employee the right to disclose his or her wage information. These wage transparency protections apply to all Colorado employees. +C.R.S. 24-34-402 .

    Military Status Discrimination

    Colorado law also protects against discrimination based on military service. Employers are prohibited from discriminating against members of the Colorado National Guard or other organized militia and may not hinder or prevent a person from performing any military service - state or federal - he or she is called upon to perform by a proper authority. +C.R.S. 28-3-506.

    Public and private employers are also required to provide leave and reinstatement to employees who serve in the Colorado or United States military reserve. +C.R.S. 28-3-601 et seq. Public employees must be given 15 days' paid leave for training or service with the Colorado National Guard or United States military reserve and unlimited unpaid leave for service. +C.R.S. 28-3-601. Private employers must give 15 days' unpaid leave to members of the National Guard or United States military reserve for training with the United States military. +C.R.S. 28-3-609. Public employees returning from training or any military service and private employees returning from training or National Guard service are entitled to reinstatement and an employee's absence may not affect the employee's right to receive normal vacation, sick leave, bonus, advancement or other advantages of employment normally afforded to that employee's position. +C.R.S. 28-3-609; +C.R.S. 28-3-610.

    A violation of these provisions is a misdemeanor punishable by up to $5,000. An aggrieved person may also sue for damages or equitable relief. +C.R.S. 28-3-506; +C.R.S. 28-3-611.

    Lactation/Breastfeeding Protections and Accommodations

    A mother may breastfeed in any place she has a right to be. +C.R.S. 25-6-302.

    Employers must make reasonable efforts to provide a room in close proximity to the work area (other than a toilet stall) where an employee may express breast milk in privacy. Reasonable efforts means "any effort that would not impose an undue hardship on the employer's business operations." Undue hardship is defined as any action requiring significant difficulty or expense when considered in light of the employer's size, financial resources, nature and structure of business operations. Employers must provide a nursing mother with reasonable unpaid break time to express breast milk for her nursing child, or permit an employee to use paid break time, paid meal time, or both for this purpose. A nursing mother has a right to express milk in the workplace for up to 2 years after a child's birth. An employer making reasonable efforts to accommodate an employee who chooses to express breast milk in the workplace will be in compliance with the lactation accommodation and break requirements. +C.R.S. 8-13.5-103; +C.R.S. 8-13.5-104.

    Smokers' Rights

    Colorado's lawful off-duty activities statute prohibits an employer from terminating an employee "due to the employee engaging in lawful activity off the premises of the employer during nonworking hours" unless it relates to a bona fide occupational qualification or other exceptions. +C.R.S. 24-34-402. The lawful off-duty statute is sometimes referred to as a smokers' rights law, and the Colorado Supreme Court has recognized that smoking tobacco is lawful off-duty conduct. See Evans v. Romer, +882 P.2d 1335 (Colo. 1994).

    Local Requirements

    Boulder Discrimination

    The City of Boulder Human Rights Ordinance applies to any person employing any person in any capacity.  The City of Boulder Human Rights Ordinance prohibits any person from discriminating in employment based on:

    • Race;
    • Creed;
    • Color;
    • Sex;
    • Sexual orientation;
    • Gender variance;
    • Genetic characteristics;
    • Marital status;
    • Religion;
    • National origin;
    • Ancestry;
    • Age (over 40);
    • Mental or physical disability;
    • Source of income; or
    • Immigration status.

    An employer shall not discriminate against an individual with respect to:

    • Hiring processes (application, interview, testing, selection);
    • Termination;
    • Pay rates and benefits allocations;
    • Promotion, demotion, layoffs;
    • Training opportunities; and
    • Job advertisements.

    An employer shall attempt to provide an employee with a mental or physical disability a reasonable accommodation.  It is not a discriminatory or unfair employment practice if there is no reasonable accommodation that can be provided with regard to the disability, the disability actually disqualifies the individual from the job, and the disability has a significant impact on the job.

    Denver Discrimination

    Denver's Human Rights Ordinance prohibits discrimination against an individual based on:

    • Race;
    • Color;
    • Religion;
    • National origin;
    • Gender (includes pregnancy, childbirth and related medical conditions);
    • Age;
    • Sexual orientation;
    • Gender variance;
    • Marital status;
    • Military status; or
    • Physical or mental disability.

    Unlawful discrimination or an unfair employment practice includes:

    • The failure or refusal to hire an applicant or to terminate any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment, including promotion; or
    • To limit, segregate or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect status as an employee.

    With respect to disability, it is not considered unlawful discrimination or an unfair employment practice if there is no reasonable accommodation that the employer can make with regard to the disability, the disability actually disqualifies the person from the job and the disability has a significant impact on the job. There are other exceptions as well (e.g., it is not considered discriminatory for employment to be limited to the elderly or physically or mentally disabled provided that such employment does not discriminate among the elderly or physically or mentally disabled on the basis of other discriminatory criteria). +Denver, Colorado Code of Ordinances Sec. 28-93.

    Any employer covered under this ordinance must post a notice available in English and Spanish) in a conspicuous location, which must include information pertinent to filing a complaint under the ordinance. +Denver, Colorado Code of Ordinances Sec. 28-104.

    Future Developments

    Equal Pay for Equal Work Act

    Pursuant to the Equal Pay for Equal Work Act, Colorado has amended its equal pay law, enhanced wage transparency requirements, restricted salary history inquiries and impose notice requirements in an effort to prevent pay disparities. The law takes effect on January 1, 2021, unless a referendum petition is filed.

    +2019 Bill Text CO S.B. 85.

    Equal Pay Amendments

    The law provides that an employer with one or more employees may not discriminate between employees on the basis of sex, or on the basis of sex in combination with another protected status by paying an employee of one sex a wage rate less than the rate paid to an employee of a different sex for substantially similar work, regardless of job title, based on a composite of skill, effort (which may include consideration of shift work) and responsibility, except where the employer demonstrates each of the following:

    • That the wage differential is based on:
      • A seniority system;
      • A merit system;
      • A system that measures earnings by quantity or quality of production;
      • The geographic location where the work is performed;
      • Education, training or experience to the extent that they are reasonable related to the work in question or
      • Travel (if it is a regular and necessary condition of the work performed)
    • That each factor relied on is applied reasonably;
    • That each factor relied upon accounts for the entire wage rate differential; and
    • That the prior wage rate history was not relied on to justify a disparity in current wages rates.

    Sex means an employee's gender identity.

    Wage rate means the following:

    • For an employee paid on an hourly basis, the hourly compensation paid to the employee plus the value per hour of all other compensation and benefits received by the employee from the employer; and
    • For an employee paid on a salary basis, the total of all compensation and benefits received by the employee from the employer.

    Salary History Restrictions

    The law restricts an employer from making salary history inquiries. See Interviewing and Selecting Job Candidates: Colorado.

    Wage Transparency Amendments

    The law also contains pay transparency provisions and provides that an employer may not:

    • Discharge, discipline or discrimination against, coerce, intimidate, threaten or interfere with an employee or other person because the employee or person inquired about, disclosed, compared or otherwise discussed the employee's wage rate;
    • Prohibit as a condition of employment, an employee from disclosing the employee's wage rate; or
    • Require an employee to sign a waiver or other document that:
      • Prohibits the employee from disclosing wage rate information; or
      • Purports to deny the employee the right to disclose the employee's wage rate information.

Recordkeeping

An employer is required to keep records of job descriptions and wage rate history for each employee for the duration of the employment plus two years after the end of employment in order to determine if there is a pattern of wage discrepancy.

If an employer fails to keep wage records and is later sued by an employee, the law permits the court to impose a rebuttable presumption that the records the employer failed to keep contained information favorable to the employee's wage claim.  A jury may be instructed that the failure to keep records is evidence that a violation was not in good faith.

Transparency in Pay and Opportunities for Promotion or Advancement

An employer is required to make reasonable efforts to announce, post, or otherwise make known all opportunities for promotion to all current employees on the same calendar day and prior to making a promotion decision.

An employer is required to disclose in each posting for each job opening the hourly or salary compensation, or a range of the hourly or salary compensation, and a general description of all of the benefits and other compensation to be offered to the hired applicant.

Enforcement and Remedies

An employee may bring a private right of action in district court to pursue remedies and is not required to file an administrative wage discrimination claim with the Colorado Department of Labor and Employment (Department) prior to bringing suit.  There is a two year statute of limitations.  A violation of the law occurs each time a person is paid a discriminatory wage rate.

An employee may recover economic damages (the difference between the amount the employer paid and what the employee would have received if there was no violation) plus additional liquidated damages equal to the amount of the economic damages.  An employee may also recover attorneys' fees and costs and obtain legal and equitable relief including reinstatement, promotion, and a pay increase. An employee may obtain relief for back pay for the entire time the violation continues, not to exceed three years.

The Director of the Colorado Department of Labor and Employment is also authorized to enforce actions against an employer involving transparency in pay and employment opportunities including fines of between $5,000 and $10,000 per violation.  If an employer fails to comply with the Act for one promotion opportunity or job opening this is considered one violation.

Liquidated damages means damages to compensate an employee for the delay in receiving amounts due as a result of an employer's violation of this law. It does not constitute a penalty to the employer.

The law provides that the Department may create and administer a process to accept and mediate complaints and to provide legal resources concerning alleged violations of this law and to promulgate rules as necessary for this purpose.

Safe Harbor and Liquidated Damages

An employer may be able to avoid liquidated damages if it can establish that it acted in good faith and had reasonable grounds for believing it was not violating the law.  One factor to be considered in determining whether an employer acted in good faith is whether the employer had completed a thorough and comprehensive pay audit of its workforce with the specific goal of identifying and remedying unlawful pay disparities within two year prior to the alleged violation.

+2019 Bill Text CO S.B. 85.

There are no other developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

Employee Management > EEO - Discrimination

Colorado Division of Civil Rights