COLORADO SEXUAL ORIENTATION DISCRIMINATION ATTORNEY

Sexual Orientation Discrimination in Colorado

 

Unfortunate as it may be, discrimination based on a person’s sexual orientation or gender identity is still a common problem in the United States. Until recently, this discrimination was only expressly illegal in 28 states in the U.S. According to a study by UCLA’s Williams School of Law, more than four million LGBTQ+ workers live in states without express statutory protections.

While Congress has not yet passed a federal law explicitly prohibiting discrimination based on sexual orientation or gender identity, a June, 2020 Supreme Court decision (Bostock) changed the law. Now, firing an individual based on their sexual orientation or transgender status violates federal civil rights laws. Employees also enjoy strong workplace discrimination protections in Colorado. Discrimination based on sexual orientation or gender identity in the workplace is expressly illegal under Colorado law.

Federal Protections

While there is no federal legislation expressly prohibiting discrimination based on sexual orientation or gender identity, recent case law makes this discrimination illegal under Title VII of the Civil Rights Act of 1964. In Bostock v. Clayton County, Georgia, the Supreme Court ruled that firing someone based on their sexual orientation or gender identity is a violation of Title VII, which prohibits discrimination on the basis of sex. See 42 U. S. C. §2000e–2(a)(1). The court explained that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” For example, if a company fires a woman because she is married to another woman but wouldn’t fire a man because he was married to a woman, it is sex discrimination.

However, the Bostock decision didn’t address dress codes, bathroom use according to gender identity, or locker room access. The Supreme Court’s decision also failed to address religious liberty issues such as the First Amendment, the Religious Freedom Restoration Act, and exemptions Title VII allows for religious employers.

Colorado Protections

The Colorado Anti-Discrimination Act (CADA) protects individuals from discrimination based on their race, color, religion, creed, national origin, ancestry, sex, age, sexual orientation, and physical or mental disability. See C.R.S. § 24-34-401, et seq. (2017). Discriminatory behavior is illegal, whether based on a person’s real or perceived sexual orientation or gender identity.

Additionally, it is illegal for Colorado employers to:

• Make inquiries about a potential employee’s sexual preference or gender identity;
• Have separate seniority or promotion tracks based on different sexual orientations or gender identities;
• Harass, discipline, or fire an employee based on sexual orientation or gender identity;
• Express a preference for someone of a particular gender identity or sexual orientation in job advertisements;
• Refuse to hire, promote, or give pay raises to someone based on sexual preference or gender identity; or
• Refuse to allow employees to dress according to the gender identity with which they identify.

Penalties for Violating the Colorado Anti-Discrimination Act

In 2013, the Colorado legislature expanded CADA to put in place more stringent penalties. The statute now permits those discriminated against to bring suit against employers and seek both economic and non-economic damages, including back pay, front pay, and “other equitable relief” that the court or the Colorado Civil Rights Commissions deems appropriate. The CADA also allows the court to award attorneys’ fees to the prevailing plaintiff.

With evidence that an employer intentionally engaged in discrimination or unfair employment practices, “with malice or reckless indifference to the rights of the plaintiff,” the court or the commission can award punitive damages and compensatory damages. These damages can include compensation for emotional pain and suffering, inconvenience, loss of enjoyment of life, mental anguish, and other non-pecuniary losses.

Filing a Discrimination Claim

If you experience discrimination based on your sexual orientation, it’s important to let your employer know right away. If your employer doesn’t resolve the problem, you can file a claim with either the EEOC or the Colorado Civil Rights Division (CCRD). The agencies share information and investigate claims cooperatively. However, the federal anti-discrimination legislation, Title VII, covers only employers with 15 or more employees. Colorado’s Anti-Discrimination Act covers all employers. So, you may need to file a state claim if you work for a small employer.

Both state and federal discrimination claims also have statutes of limitations, after which your claim may expire. If you’ve experienced workplace discrimination, it’s important to discuss your options with an experienced employment law attorney as soon as possible to preserve all possible claims.