“A hostile work environment is like a disease. It can have many symptoms, some of which change over time, but all of which stem from the same root.”
Hansel v. Pub. Serv. Co. (D. Colo. 1991)
Generally, employers in Colorado have significant latitude in how they treat their employees. However, some treatment is specifically prohibited by law or a contractual agreement. Your employer has an obligation to protect and maintain a work environment that is hostility-free and allows you to be fully productive. If you feel you are being subjected to a hostile work environment, you may have cause to bring legal action against your employer.
Talk to a Hostile Work Environment Attorney
You have a right to a safe and comfortable environment in which to perform your job responsibilities. State and federal laws, such as Title VII of the Civil Rights Act of 1964 and the Colorado Anti-Discrimination Act, protect these rights. Our hostile work environment attorneys at Robinson & Henry can help you take action against your employer if they violate these laws. Call 303-688-0944 today to begin your case assessment.
Colorado Workplace Harassment Laws
Colorado and federal employment laws share basic standards for workplace harassment. Although the standards are largely similar, workplace harassment law can be complex because different standards apply depending upon key facts.
On a state level, the Colorado Anti-Discrimination Act (Colo. Rev. Stat. § 24-34-495) makes it unlawful to harass an employee:
“To prove a claim of harassment under CADA, a plaintiff must demonstrate that a rational jury could find that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” St. Croix v. Univ. of Colo. Health Science Ctr. (Colo. App. 2007)
Because CADA closely resembles Title VII of the Civil Rights Act, Colorado courts rely on federal cases for guidance in applying the Colorado Anti-Discrimination Act, or CADA.
The Complaint Process
Filing the Complaint
A workplace discrimination claim can be filed either with the Colorado Civil Rights Division (CCRD) or the Equal Employment Opportunity Commission, the federal administrative agency commonly called the EEOC. The two agencies have a work-sharing agreement, which simply means they cooperate with each other to process claims.
Filing a claim with both agencies is unnecessary as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.
Colorado’s anti-discrimination law covers employers of any size. If you want to file with the EEOC, your employer must have 15 or more employees. (or 20 in age discrimination cases).
To preserve your workplace discrimination claim under state law, you must file with the CCRD, or cross-file with the EEOC, within 180 days of the date you believe you were discriminated against.
To preserve your claim under federal law, you must file with the EEOC, or cross-file with the state agency, within 300 days of the date you believe you were discriminated against.
What Happens Next?
When your claim is filed, the EEOC will give you a copy of it with your charge number. Within 10 days, the EEOC will also send a notice and a copy of the claim to the employer.
At this point, the EEOC may decide to do one of the following:
- Ask you and the employer to take part in mediation
- Ask the employer to provide a written answer to your claim and answer questions about it. Your charge will then be given to an investigator.
- Dismiss your claim if the EEOC does not have jurisdiction or if it was not filed in time
If the EEOC decides to investigate your charge, they may interview witnesses and gather documents. Once the investigation is complete, you and your employer will be notified of the results.
If the EEOC determines that discrimination did not occur, you will receive a notice of your right to sue. This notice gives you permission to file a lawsuit in a court of law.
If the EEOC determines that discrimination occurred, they will try to reach a voluntary settlement with your employer.
Pursuing Your Claim in Court
If your case is not resolved by an administrative agency, you will need to pursue your claim in court.
You cannot file a federal employment discrimination case in court without first going to the EEOC and having the agency dismiss your claim. This process is called exhausting your administrative remedies. Similarly, before you can proceed with a lawsuit based on your state discrimination claim, you must file with the Colorado Civil Rights Division.
Because the Colorado Anti-Discrimination Act caps damages, many Colorado attorneys choose to file employment discrimination cases in federal court using federal law.
In order to file a claim in federal court, the EEOC must first issue a document known as dismissal and notice of rights or notice of right to sue. This document gives you permission to move forward with your lawsuit.
Deadlines to File Your Discrimination Lawsuit
A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice of right to sue from the EEOC.
A lawsuit based on your state claim must be filed within 90 days of receiving a similar letter from the Colorado Civil Rights Division.
If you miss these deadlines, you may lose your ability to pursue a discrimination case.
When is Workplace Harassment Illegal?
We’ve likely all encountered conflict in the workplace. However, not all offensive conduct rises to the level of illegal workplace harassment.
Petty slights are unpleasant, but not automatically unlawful. Workplace harassment becomes illegal when:
- enduring offensive behavior becomes a condition of continued employment; or
- the offensive conduct is so severe or pervasive that it creates a hostile work environment.
Under Colorado Anti-Discrimination Act, harassment is not considered an illegal act unless a complaint is filed with the appropriate workplace authority. The authority must also have failed to reasonably investigate that complaint and take prompt remedial action if appropriate. C.R.S. § 24-34-402(1)(a)
Sexual harassment involves unwanted or unwelcome sexual advances, sexual favor requests, and physical or verbal actions that are sexual in nature.
There are two types of sexual harassment categories:
- quid pro quo: This means your job depends on whether you accept or reject sexual advances from your employer or superior. A claim may be filed regardless of whether you accepted or rejected the advances.
- hostile work environment sexual harassment: You were subjected to sexual advances that made doing your job impossible.
Hostile Work Environment
Sexual harassment is the most widely known example of a hostile work environment. However, it is far from the only one. Any offensive conduct that discriminates against a protected group of people can give rise to a hostile work environment claim. (Read more on protected groups below.)
Tenth Circuit courts consider multiple factors when hearing hostile work environment cases. Those factors include:
- the frequency of the discriminatory conduct
- its severity
- whether it is physically threatening or humiliating, or a mere offensive utterance
- whether it unreasonably interferes with an employee’s work performance.
Honeycutt v. Safeway, Inc. (D. Colo. 2007)
Elements of a Hostile Work Environment Claim
Exposure to a hostile work environment is established when you prove the following four elements:
- you are a member of a protected group
- you have been subjected to unwelcome harassment
- the harassment was based on the protected characteristic
- the harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of your employment and created an abusive working environment. Ash v. Aurora Pub. Sch. (D. Colo. July 23, 2020) quoting Asebedo v. Kan. State Univ. (10th Cir. 2014)
Both Colorado and federal law define protected categories. It is not illegal for your employer to treat you differently than he or she treats your coworkers. However, it is illegal for your employer to discriminate against you based on a protected characteristic.
Classes protected under Colorado Revised Statute § 24-34-402 include:
- sexual orientation
- gender identity (an individual’s innate sense of their own gender, which may or may not correspond with the sex assigned at birth)
- gender expression
- national origin
The Conduct Must Be Unwelcome
To constitute a hostile work environment, the conduct must be considered unwelcome. This means that you did not invite this conduct, nor did you willingly participate in it.
Unwelcome conduct or behavior could include verbal, visual, or physical harassment. It can come from any number of sources, including supervisors, co-workers, agents, and customers.
The Conduct Must Be Severe or Pervasive
The conduct must be severe or pervasive enough to alter the terms and conditions of employment by affecting your ability to successfully do your job.
Simply put, the behavior at the source of a hostile work environment claim cannot be a one-off incident. You will need to show a pattern of harassment or discrimination in order to meet this requirement:
“Isolated or trivial episodes of harassment are insufficient to satisfy that standard. A court must look to the totality of the circumstances to determine whether the alleged conduct is sufficiently pervasive to create a hostile environment.”
Honeycutt v. Safeway, Inc., 475 F. Supp. 2d 1063, 1068 (D. Colo. 2007)
However, in some instances, a single act can be so severe that it alone can establish cause for a hostile work environment lawsuit.
Employer’s Failure to Take Remedial Action
Now, let’s take a look at a particularly egregious example of a Colorado hostile work environment.
Hansel v. Public Service Co.
In this 1991 case, Victoria Hansel sued her former employer, a Pueblo power plant, for “the employer’s maintenance of, and failure to correct, a sexually hostile work environment in violation of Title VII of the Civil Rights Act of 1964.” Hansel v. Pub. Serv. Co. (D. Colo. 1991)
After completing her probationary period, Hansel was warned by management that she would suffer abuse from her male co-workers. Indeed, she suffered harassment, threats, and physical assaults throughout the course of her employment. However, when Hansel reported the incidents to her employer, no action was taken to correct the situation.
The harassment Hansel faced from her co-workers was clearly unwelcome. These incidents occurred consistently over a matter of several years, which is certainly severe and pervasive. Moreover, these incidents would not have occurred but for her gender. Therefore, a Colorado district court ruled in favor of Hansel:
“Hansel’s male co-workers intentionally and systematically set out from the beginning of her employment to drive her from her job because she is a woman. … Indeed, the level of intolerable hostility escalated as it became subtle and insidious.”
Hansel v. Pub. Serv. Co., 778 F. Supp. 1126, 1132 (D. Colo. 1991)
Retaliation by Your Employer is Illegal
Retaliation is an adverse action by an employer against an employee who has engaged in a protected employment activity. Such activities can include:
- whistleblowing or raising concerns about illegal discriminatory practices in the workplace
- reporting incidences of harassment or discrimination
- filing a discrimination charge with the Equal Employment Opportunity Commission
- filing a discrimination charge with the Colorado Civil Rights Division
- supporting a discrimination claim by a coworker
Common Retaliatory Tactics
Wrongfully firing the employee is the most common example of retaliation. However, it is not the only example. Your employer can also retaliate by demoting you, reducing your pay, or otherwise harassing you.
A successful retaliation claim involves proving the following three elements:
- the employee took a protected action
- the employer took an adverse employment action
- the protected action caused the adverse action
Krauss v. Catholic Health Initiatives Mountain Region, 66 P.3d 195, 201 (Colo. App. 2003)
The Job Protection and Civil Rights Enforcement Act of 2013 allows employees alleging workplace discrimination to seek the following:
- front pay
- back pay
- interest on back pay
- reinstatement or hiring
- attorney’s fees
- punitive and compensatory damages
- liquidated damages for discriminatory acts or practices based on “malice or reckless indifference to the rights of the plaintiff”
Employees alleging discrimination also have a right to a jury trial. Prior to 2015, employees were able to seek only hiring, reinstatement, promotion, and back pay.
Front Pay and Back Pay
In hostile work environment cases, employees may be awarded damages for lost back pay from the discharge to the trial, and lost front pay from the trial onward:
Front pay is awarded to former employees whose employers cannot rehire or reinstate them within the organization. Back pay is also awarded to former employees. However, employers can forego this obligation if the employee accepts an offer of reinstatement to the same or similar position that accounts for the wages that they’re due.
Courts in the Tenth Circuit, which includes Colorado, generally prefer reinstatement to awarding front pay. Front pay is typically only awarded when:
- the employer is hostile
- an amicable working relationship is impossible, or
- animosity caused by the lawsuit has irreparably damaged the employer-employee relationship.
Compensatory damages involve mental and emotional suffering. These damages pay victims for out-of-pocket expenses caused by the discrimination. This could include costs associated with a job search or medical expenses. Compensatory damages also pay victims for any emotional harm suffered, such as mental anguish, inconvenience, or loss of enjoyment of life.
Punitive damages are meant to punish an employer who has committed an especially malicious or reckless act of discrimination.
Limits On Compensatory & Punitive Damages
Title VII limits the sum amount of compensatory and punitive damages you can recover in a workplace discrimination case. These limits vary depending on the size of the employer:
- employers with 15-100 employees, the limit is $50,000
- employers with 101-200 employees, the limit is $100,000
- employers with 201-500 employees, the limit is $200,000
- employers with more than 500 employees, the limit is $300,000
42 U.S.C.S. § 1981a
Front Pay And Back Pay Are Not Compensatory Damages
If your case involves intentional age discrimination or intentional sex-based wage discrimination under the Equal Pay Act, you cannot recover either compensatory or punitive damages. However, you may be entitled to liquidated damages.
A Colorado judge may award liquidated damages in order to punish an especially malicious or reckless act of discrimination. The amount of liquidated damages that may be awarded is equal to the amount of back pay awarded to the victim.
Attorney’s Fees and Other Costs
If you are a victim of workplace harassment, you also may be able to recover attorney’s fees, expert witness fees, and court costs.
Fight Back with a Hostile Work Environment Attorney
A hostile work environment can harm your mental and emotional wellbeing. It can even lead to financial difficulties. If you feel unwelcome at work due to being the target of offensive behavior, you may have grounds for a hostile work environment lawsuit. The employment law attorneys at Robinson & Henry will prepare you for the arguments against your position and stand firmly for your rights as an employee. Additionally, we will aggressively pursue any available damages to make you financially whole again. Call 303-688-0944 to begin your case assessment.