In 2008, Colorado expanded its Anti-Discrimination Act (CADA) to include discrimination against a person based on their sexual orientation, including their transgender status. In May 2013, the law was altered to include businesses with fewer than 15 employees and to put in place penalties with real teeth and costly consequences for offending employers.
Although CADA has always prohibited small employers from discriminating against persons based on race, gender, religion, disability and national origin, it has not allowed jury trials or awards of attorney costs and compensatory and/or punitive damages to plaintiffs. All that has changed.
Potentially costly changes cause employers to sit up and take notice
First of all, the simple act of allowing a case to go before a jury that deals with something as potentially volatile as gender identity and sexual orientation alters the complexion of the entire process. Juries are notoriously emotional, impressionable and unpredictable. Introducing a jury into a potentially socially charged trial revolving around gender discrimination can lead to trials that are not only longer, but also more costly.
Since attorney fees in a CADA case can be substantial, employers’ liability increases because they will be liable for these fees if the case is lost. Furthermore, the court can now award punitive damages up to $10,000 against companies with fewer than five employers and up to $25,000 for those employers with up to 14 employees. Fines go up from there for larger organizations, capping at $300,000 for large employers. In short, a lot is at stake.
Federal law coming
Colorado is ahead of the federal government with its anti-discrimination laws, but changes are coming from that front as well. Currently, 29 states have no state laws that prohibit discrimination based on sexual orientation. Thirty-three states do nothing to protect individuals against discrimination based on gender identity. Recently, the U.S. Senate passed a law prohibiting discrimination based on gender identity or sexual orientation. Now the bill is before the House. This bill, in whatever form it passes in Congress, will differ from the Colorado Anti-Discrimination Act and it will be up to employers to sort through the laws and craft procedures that ensure their companies are in compliance with both.
A legal landmine for employers
As an employer, the real challenge in fulfilling the requirements of the Colorado Anti-Discrimination Act (and any new federal law that ultimately passes) is wrapping arms what “transgender identity” actually is. Ask three people what “transgender” means and you are likely to get three different answers. To some it’s a person who is undergoing or who has undergone gender reassignment surgery and/or treatment. To others, it can be as broad so to include a simple cross-dresser who prefers to wear apparel other than that of his or her birth-assigned gender. And, still others hold that transgender includes anyone who self identifies with a gender other than his or her birth gender without taking steps to chemically or surgically alter his or her birth assigned gender. Beyond issues of harassment and restriction from employment – which are blatantly illegal – how does an employer make certain his or her company has amply provided for the bathroom requirements of all employees? It’s complicated, and in the end will not be fully sorted out until enough cases have come before the courts to establish a body of case law.
Make sure you’re not one of the companies making “case law”
Today, as the courts begin working out the ramifications of CADA, it’s wise for a business owner to err on the side of caution. Our best advice is to reach out for consultation to someone well familiar with legal human resources (HR) practices. Our business representation attorneys specialize in advising companies, large and small, on all issues related to employee relations and corporate governance. Don’t leave yourself open to discrimination lawsuits. Call us at 303-688-0944 for sound advice on CADA and all your employee relations concerns. We’ll help keep you out of court, and if you do find yourself facing a charge, we’ll ensure you have the required documentation to quickly present yourself and your business in a favorable light.
Contact our employment attorney
Contact our Colorado Anti-Discrimination Act attorney and employment lawyers to discuss how we can help you in any employee or workplace situation that you find yourself in. Call 303-688-0944 for an initial, consultation.