The Colorado Supreme Court on Oct. 13 heard arguments in two cases that shed light on the tension between the Colorado Anti-Discrimination Act and the Colorado Governmental Immunity Act.
Both cases involve former public sector employees who brought CADA claims against the governmental entities they used to work for, and the employers claimed immunity under the CGIA. The cases raise questions about legislative intent and the difference between “tort-like claims” and employment discrimination remedies.
HOUCHIN V. DENVER HEALTH
In the first case, plaintiff Brent Houchin in 2017 sued his former employer, Denver Health and Hospital Authority, a subdivision of the State of Colorado, alleging it had terminated him based on his sexual orientation and as retaliation for asserting his rights under the Colorado Anti-Discrimination Act.
Denver Health argued Houchin’s claims for compensatory relief are barred under the Colorado Governmental Immunity Act, which says public entities are immune from liability in all claims “which lie in tort or could lie in tort.”
Although the Colorado Supreme Court ruled in the 2000 case City of Colorado Springs v. Conners that CADA claims are not subject to the CGIA, CADA has since been amended to include legal remedies. Denver Health argues the court’s decision in Conners was based on the limited equitable remedies — back pay, reinstatement and non-monetary orders — available under the earlier version of the law, and the court would have ruled public entities are immune from the tort-like remedies allowed under the 2013 amendments.
A majority of the Court of Appeals agreed in part, permitting Houchin to pursue equitable remedies but finding the language of the 2013 CADA amendments only allowed for employees of the State of Colorado to seek legal remedies, not employees of a political subdivision such as Denver Health.
The Colorado Supreme Court took the case to decide, among other issues, whether CGIA bars compensatory relief against a governmental entity for CADA claims and to reexamine the Court of Appeals’ interpretation of whether the “state” can include political subdivisions when it comes to seeking legal remedies under CADA.
According to Denver Health, Houchin’s CADA claims are tort claims that are barred by CGIA. It also argues that the CGIA applies to the entire claim, not just to certain types of relief, and therefore Houchin’s claims for compensatory relief cannot be separated from his claims for equitable relief and his claims should be dismissed in their entirety.
Houchin argues the Conners case resolved the tension between CGIA immunity and CADA liability in favor of CADA’s broad remedial purposes, which include protections for public employees. Attorneys for Houchin also reject the idea that CADA claims are “tort-like claims,” arguing instead the purpose of CADA is to provide remedies and protection against employment discrimination.
ELDER V. WILLIAMS
The second case, Elder v. Williams, involves a former El Paso County Sheriff’s Office employee, Timothy Williams, who sued the sheriff’s office for age discrimination and retaliation. Williams sought front pay and compensatory damages, and a district court found both remedies were allowed under the CGIA — front pay as an equitable remedy not barred by the CGIA and compensatory damages as a remedy allowed under the 2013 amendments.
A division of the Court of Appeals found that while the language of CADA doesn’t allow for compensatory damages for age discrimination claims, it does permit the recovery of compensatory damages for retaliation claims, and these are not barred by CGIA. The division also disagreed with the Houchin majority’s interpretation of who is a “state” employee and concluded the “state” includes agencies such as EPSO.
As in Houchin, the Colorado Supreme Court is considering whether employees can seek compensatory damages from political subdivisions, departments and similar public sector employers for discrimination under the CGIA and whether CGIA bars compensatory relief claims under CADA.
EPSO argues the Court of Appeals went against established Colorado law, including the holding in Conners, when it determined that the compensatory damages remedy under CADA doesn’t lie in tort because it doesn’t relieve “tort-like personal injuries.”
Much like Houchin, Williams argues CADA claims should not be classified as torts because they are based on anti-discrimination laws whose purpose is to eliminate workplace discrimination, and any benefits to the claimant are incidental to that purpose. “The reduction of statutory discrimination claims to common law torts is ahistorical and dismissive of the importance of statutory anti-discrimination law,” attorneys for Williams said in their reply brief.
Williams also claims the legislature intended “state” to include political subdivisions when crafting CADA protections and that, until Houchin, the statute’s use of “state” was generally understood to include political subdivisions. Both Williams and Houchin argue treating certain public employees differently from those who work for the state, and denying them remedies under CADA, violates their equal protection rights.
EPSO, on the other hand, points to the legislature’s use of the word “state” when drafting an exception to the CGIA in CADA’s compensatory damages amendment as evidence that it only intended for the state — and not any political subdivisions or other public employers — to be exempt.