In particular, individuals who work for small employers, those who are discriminated against because of sexual orientation and state employees in age and disability discrimination cases will now have remedies available to be able to pursue claims of illegal discrimination.
House Bill 1136 adds remedies to the Colorado Anti-Discrimination Act which allow for compensatory and punitive damages and enable plaintiffs to recover attorney fees and costs associated with having to litigate a discrimination case. Some business groups have claimed that the bill is a job killer and that it would put small businesses out of business. However, the data available suggests otherwise. Opponents to the Civil Rights Act of 1991 made similar arguments; however, after Congress added compensatory and punitive damages to the Civil Rights Act, there was a 20.7% increase in jobs in the United States during the rest of the decade.
Furthermore, 42 other states and the District of Columbia offer such remedies (29 states offer uncapped compensatory and/or punitive damages) and the additions of such remedies have not been shown to result in significant increases in filings of charges of discrimination according to a study conducted by the Bell Policy Center. Maryland modified its anti-discrimination law to add compensatory and punitive damages in 2007 and saw no considerable jump in complaints filed from 2006 and 2009.
Despite these facts, House Bill 1136 includes compromises to protect small businesses. First, the remedies available under the bill will apply to causes of action alleging discriminatory or unfair employment practices occurring on or after January 1, 2015. The delay in implementation is designed to allow the Colorado Civil Rights Commission ample time to establish a volunteer working group consisting of individuals who represent both employer and employee interests. The establishment of this working group and details regarding its duties to implement outreach efforts to provide employers with education regarding the changes to the law are contained in House Bill 1136.
Second, the bill includes caps on compensatory and punitive damages based upon the size of the employer; $10,000 cap for employers with one to four employees and $25,000 cap for employers with five to fourteen employees. The caps for employers with fifteen or more employees mimic those in federal civil rights laws. Furthermore, the court must consider the size and assets of the employer and the egregiousness of the intentional discriminatory or unfair employment practice when determining the appropriate level of damages to award a plaintiff. The result is a bill which will provide the long-needed access to justice for Colorado workers while recognizing the concerns of small business owners. Stay tuned for the final signing and implementation of the Job Protection and Civil Rights Enforcement Act.
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By Mary Jo Lowrey