LGBT employees working for public entities other than the State of Colorado now enjoy less protection and fewer remedies for intentional workplace discrimination than private-sector workers.
FOR IMMEDIATE RELEASE Contact: Merrily Archer (303) 915-5486
DENVER, CO – On Thursday April 4, a Panel of the Court of Appeals created a 2-tiered caste system in Colorado, wherein some public employees are explicitly protected against workplace discrimination, and other public servants are intentionally denied the same remedies.
“We’re shocked because the majority’s analysis violates basic equal protection principles under the U.S. and Colorado Constitutions and betrays the Legislature’s intent in passing HB13-1136 several years ago,” said Merrily Archer, Esq., M.S.W. of EEO Legal Solutions.
Colorado’s LGBT public servants currently have no recourse to fight discrimination claims under Federal law, and due to the Court’s actions, now cannot holdmost public employers accountable for intentional workplace discrimination under the Colorado Anti-Discrimination Act.
In a split 2-1 decision in Houchin v. Denver Health, the majority held that public entities like Special Districts, school districts, municipalities, and county governments enjoy absolute governmental immunity from damages in discrimination lawsuits under the Colorado Anti-Discrimination Act (CADA).
In 2013 with HB13-1136, the Colorado Legislature laid out an intent to offer LGBT workers the same remedies and protections (e.g. compensatory damages for pain/suffering, attorneys’ fees) under CADA as employees protected under federal law based on race, gender, ethnicity, religion, age, disability, etc. In these 2013 changes to CADA, however, the General Assembly excluded the State of Colorado and Special Districts, quasi-governmental agencies, and other public employers from punitive damage awards to protect public treasuries, citing governmental immunity. Then, when discussing governmental immunity in a later provision, the General Assembly mentioned only the State’s governmental immunity, while omitting reference to Special Districts, school districts, municipalities, and country governments.
This omission, the Court found, signals the Legislature’s intent that only LGBT employees working for the State of Colorado should benefit from CADA’s remedies, while LGBT employees working for its numerous political subdivisions (e.g. Special Districts, school districts, municipalities, and county governments) be expressly denied equal treatment under CADA.
“Given the truly harmful impact of this decision on LGBT public servants all over Colorado, we’re joining forces with advocacy groups to seek Supreme Court review. I wholeheartedly reject the idea that the Legislature intended to create discrete ‘protected’ and ‘unprotected’ classes of public workers,” said Archer.
Mr. Houchin was terminated from public agency Denver Health & Hospital Authority in 2016 for being gay, by a since-terminated manager. A Human Resources professional for over 2 decades, Houchin knew his rights and initiated legal proceedings against Denver Health in June 2017.
For the past 31 months, Denver Health has vigorously defended the agency’s right to terminate LGBT employees simply due to their sexual orientation and to deny them capacity to seek recourse.
“What’s particularly cruel about Denver Health’s actions is that they actively recruit LGBT employees to work for the Authority, and include information about workplace protections in Employee Handbooks,” Houchin said. “Denver Health appears adamant in denying the same remedies offered to all State employees and to those in the private sector, yet touts ‘Diversity and Inclusion’ as a key benefit to working with the agency. To be singled out and lose my job for being gay, and now to fall into a legal blind spot feels like the opposite of ‘Inclusivity’ for me”
Archer added, “I’m horrified to think that, due to the Court’s findings, a DPS Kindergarten teacher, a Metro Football Stadium District administrator, or a Chaffee County DMV clerk are all left without any legal safety net should they be unfairly terminated for their LGBT identities.”
Archer plans to seek review of this decision before the Colorado Supreme Court in the next two weeks.
Merrily S. Archer, Esq., M.S.W.
600 17th Street, Suite 2800-South
Denver, Colorado 80202
(303) 248-3769 (direct)
(303) 915-5486 (cell)