By Tanya A. Sevy
Moye White LLP
Earlier this summer, Colorado Gov. Jared Polis signed House Bill 1367 into law. The law makes significant revisions to the Colorado Anti-Discrimination Act. The bill had a tumultuous legislative path, including an earlier version with even broader protections. The original bill expired at the end of the 2021 legislative session. As enacted, House Bill 1367 does not contain the full spectrum of protections desired by its advocates. However, Colorado employers should be aware that it still includes substantial changes.
The new law revises three main provisions of CADA: the timeline for the Colorado Civil Rights Division to receive a charge of discrimination and complete an administrative investigation, the coverage of domestic workers and the remedies available to claimants in cases involving age discrimination.
Changes in the Time to Complete an Investigation
CADA requires “[a]ny person claiming to be aggrieved by a discriminatory or unfair practice” to submit a written charge of discrimination to the CCRD before they can file suit. The CCRD then performs an investigation into the claims.
Under the earlier version of CADA, there are three ways that the CCRD loses jurisdiction over the charge and investigation. First, the CCRD has 270 days from the date of filing to complete an investigation. If the CCRD fails to complete the investigation during that time period — and if the parties couldn’t agree to an extension — the CCRD loses its jurisdiction. The CCRD could also request up to two 90-day extensions to allow additional time for the investigation. Second, at any time during the investigation, the complainant can request a notice of right to sue. Once the CCRD issues the notice, it no longer retains jurisdiction. Finally, if the CCRD determines the circumstances warrant, it can issue a complaint and commence a hearing in front of an administrative law judge. Under any of these three scenarios, once the CCRD’s jurisdiction lapses, the complainant has 90 days to file a lawsuit.
The new law extends the time for the CCRD to complete its investigation under the first scenario, although the second and third remain the same. The amendment allows the CCRD 450 days from the date a charge is filed to complete its investigation, instead of the original 270 days. Now the CCRD has more than a year to complete its investigation. In this way, the legislature appears to recognize the delay in investigations currently making their way through the administrative process.
At first, this will frustrate both employees and employers who are seeking resolution. However, the revision effectively formalizes the extensions allowed under the earlier version of CADA. This will eliminate the investigators’ need to request extensions and instead automatically allows a longer investigative period — already a frequent occurrence under the current statutory framework.
Changes in the Time for an Employee to File a Charge
Of greater importance is the second revision. Under the current version of CADA, an employee must file a charge within six months after the alleged discriminatory act. The revision to CADA extends the filing period to 300 days, or close to 10 months after the alleged discrimination. This is four months longer than the previous statutory period. It is also a longer period than the time allowed under Title VII of the Civil Rights Act, CADA’s federal counterpart. Like the previous version of CADA, Title VII also mandates that a charge must be filed within 180 days of the alleged discriminatory incident.
There are several implications of this change. For example, many charges are filed jointly with the CCRD and EEOC. If an employer receives a jointly filed charge, any federal claims would be barred if not filed within 180 days, while any state claims could still proceed. Conversely, an employee could miss the filing deadline to assert federal claims but still have a timely state filing. Thus, employers cannot dismiss a charge that appears to be filed more than six months after an alleged discriminatory incident. Instead, they must examine where it was filed and whether it contains state claims, federal claims or both.
Coverage of Domestic Workers
The next revision involves CADA’s coverage of domestic workers. As originally enacted, CADA expressly exempted domestic workers and the new law removes this provision. Domestic workers may not be discriminated against based on their race, religion, age, disability or any other protected class.
This, too, has important implications. CADA defines an “employer” broadly. It includes the State of Colorado, any political subdivision and “every other person employing persons within the state.” Federal anti-discrimination statutes require a threshold number of employees before an individual or entity qualifies as an “employer,” but Colorado does not. Under Colorado’s definition, one individual who hires another can still qualify as an “employer.” Considering the individualized and personal nature of domestic work, the revision greatly broadens CADA’s protections. It now includes a wider range of both employees and employers in its coverage.
The revision includes one important exception to CADA’s anti-discrimination framework: It adds a new subsection. That provision states it is not a discriminatory or unfair employment practice for a person to consider an employee’s sex when hiring a domestic worker for child care services. Thus, an employer can prefer female child care workers without it being actionable under CADA. This is a limited exception. An employer still may not prefer child care workers of a specific race, religion or age, and the exception does not apply to any other realm of domestic work, such as elder care. The new law’s narrow exception may not be compatible with the rest of the statute, and it could prompt new types of discrimination claims.
Remedies in Age Discrimination Cases
The final substantive revision involves the remedies available in age discrimination cases. The earlier version of CADA adopted the remedies set forth in the federal Age Discrimination in Employment Act and the Fair Labor Standards Act. This includes back pay and front pay but eliminates other damages, such as emotional distress and punitive damages. the new law entirely removes these limitations, and allows the full range of damages in age discrimination cases. While some employers may look at this with concern, in practice, many plaintiffs submit overlapping charges of discrimination. An age discrimination claim may also include claims of race or gender discrimination, so this may have little practical effect.
Over the last several years, Colorado has gained recognition as a state protective of employee rights. The new CADA provisions follow a recent legislative trend of statutes offering enhanced protection for workers. But the new law is also a significantly diluted version of an earlier bill, which failed to gain traction with some of its broad protections.
It remains to be seen whether Colorado is an outlier in its worker protections, if other states will follow suit, or if Colorado’s legislative momentum in this area will continue.
While many view HB-1367 as a watered-down version of previous bills, these are still significant revisions. Colorado employers should review these changes to ensure compliance and understand future changes.
– Tanya Sevy is an attorney at Moye White, where she defends clients against discrimination claims, negligence claims and cases involving breaches of contract and business disputes. She can be reached at [email protected] or (303) 295-9814.