SB 72: Concerning Civil Rights Enforcement

This bill represents a net opportunity gain for Colorado. It would enable more victims of discrimination and harassment in the workplace to seek redress through the court system, which would protect workers from unfair discriminatory practices. This would contribute to lower employee turnover, better work environments and greater productivity.

Summary of Legislation

This bill will allow employees who successfully win workplace discrimination cases in state court to recover compensatory and punitive damages, as well as attorney and court fees, in line with federal anti-discrimination law (Title VII). Currently, victims of discrimination based on sexual orientation and employees of small business (fewer than 15 employees) are not covered by federal law, and thus have no access to meaningful remedies that could cover litigation expenses. These gaps in the law can make finding legal representation immensely difficult, which often leaves victims with no recourse.

The bill also authorizes the Colorado Civil Rights Division to create a working group that will provide employers with information, resources and trainings in an effort to prevent occurrences of discrimination and harassment. The remedies, such as attorney fees and compensatory and punitive damages, will not be available until 2014 in order to allow for adequate time for education and outreach.

Background

Employees who feel they have been discriminated against can file a claim under state or federal law. Federal law allows for employees who prove intentional discrimination to recover attorney and court fees, as well as compensatory and punitive damages. However, federal law covers only employers with 15 or more employees, meaning that people who work at small businesses in Colorado have no other option than filing under state law. Currently, state law provides relatively weak remedies that can make hiring a lawyer prohibitively expensive, particularly for low-wage employees. This gap in the law compromises the health and vitality of our work sites, our communities and our economy.

In order to file a workplace discrimination suit, a person must file with the Colorado Civil Rights Division, which has a mediation process that evaluates the merits of all claims. According to data from the Colorado Civil Rights Commission and Division, there were 599 employment discrimination charges filed in Colorado in fiscal year 2009-10, which is significantly down from the previous year.(1)

Research and Evidence of Effectiveness

From a business perspective, a company stands to gain by taking a no-nonsense approach to discrimination and harassment in the workplace. A 2005 Gallup poll found that employees who believe their organization would take appropriate action if discrimination occurs tend to experience very high job satisfaction and enjoy a positive work environment.(2)

Moreover, there is a wide body of evidence suggesting that occurrences of discrimination contribute to a toxic work environment where team dynamics are undermined and morale and productivity suffer.(3)

The effects of discrimination tend to ripple through organizations, damaging the health and productivity of not only the victim but co-workers as well. A study published in the Academy of Management Journal found a strong correlation between sexual harassment and decreased team performance.(4)

Workplace discrimination also hampers productivity by contributing to absenteeism. Often, the overwhelming stress of discrimination causes employees to avoid going to work. This costs U.S. employers hundreds of millions of dollars every year in lost productivity.(5)

Colorado's weak remedies make it an outlier among other states. This bill would align Colorado with a majority of states on anti-discrimination laws, as well as with federal law in regard to remedies.

Forty-three other states provide some type of meaningful relief for successful employment discrimination lawsuits, including compensatory damages, punitive damages or attorney fees. In fact, nearly all of Colorado's regional neighbors provide at least one of the three remedies, including Idaho, Utah, Montana, North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, Texas, New Mexico and Arizona (see appendix).(6)

Estimate of Impact and Benefits

It is very difficult to estimate if this bill would cause filings to increase or decrease because no state offers a parallel experience. However, Minnesota, Illinois, Maine and Maryland have enacted legislation in the last 10 years that contains some provisions included in SB 72. Minnesota added remedies for state employees, Illinois and Maine added sexual orientation as a protected class and Maryland added compensatory and punitive damages and attorney fees for successful workplace discrimination cases. An analysis of these states' experiences suggests there is no correlation between increasing remedies or expanding protection to new groups and increased filings. In fact, Minnesota, Maine and Maryland all experienced a decrease in filings below levels prior to implementation of their expanded law.(7)

Allowing discrimination to persist in the workplace is immensely harmful to businesses. In fact, it is a $64 billion-a-year problem, which is the conservative estimate of what employee turnover costs U.S. employers due solely to unfair treatment.(8)

Current Colorado laws provide limited incentive for employers to prevent or redress existing discrimination. By empowering victims, this bill will encourage employers to prevent discrimination from occurring – potentially increasing productivity and morale.(9)

End notes
1) 2009 Annual Report, Colorado Civil Rights Commission and Division.
2) David C. Wilson, When Equal Opportunity Knocks, Gallup Management Journal, 2006.
3) Ibid.
4) Beyond the Individual Victim, Academy of Management Journal, 2005.
5) Sexual Harassment in the Workplace, Sexual Harassment Support, 2009.
6) State Laws on Employment-Related Discrimination, National Conference of State Legislatures, 2010, and Ariz. Rev. Stat. § 41 -1401, Ida. code § 67 - 5908, Kan. Stat. Ann. § 44 - 1042, Mont. Code Ann. §§ 49 - 2 -504 et. seq., Neb. Rev. Stat. Ann. §§ 48 - 1102, et. seq., N.M. Stat. Ann. §§ 28 - 1 - 11, N.D. Cent. Code § 14 - .02.4-219, Okla. Title 25, §1301(1) et. seq, S.D. Cod. Laws §§ 20 - 13 - 35.1, Tex. Lab. Code §§ 21.210 et. seq., Utah Code Ann. §34a - 5 - 107, Wyom. §27-9-102 et. seq.
7) Annual Reports 2001-2010, Minnesota Department of Human Rights; Hillary Smith, Employment Discrimination Data Memo, Colorado Legislative Council, 2010, Data obtained from Minnesota Judicial Branch: http://www.mncourts.gov; Annual Reports 2006-2010 Maryland Commission on Human Relations Agency; Annual Reports 2002-2009 Illinois Department of Human Rights; Annual Reports 2001-2010, Maine Human Rights Commission.
8) Freada Kapor Klein. Giving Notice: Why the Best and Brightest are Leaving the Workplace and How You Can Help them Stay, San Francisco: Jossey-Bass, 2008.
9) Fulfilling the Promise: Closing the Pay Gap for Women and Minorities in Colorado, Pay Equity Commission, 2008.