Fairness in the workplace: Expanding remedies to discrimination

By Rebecca Kurz
University of Denver MSW fellow, 2009-2010

Background

Workers in Colorado can use state and federal laws in seeking remedies for discrimination, but there are differences and gaps in the law that can make it diffucult or impossibe for some workers to seek justice.

Colorado's anti-discrimination laws prohibit discrimination in the workplace based on age, race, disability, gender, sexual orientation, religion, creed, national origin or ancestry. Employees who prevail in discrimination cases can obtain front pay, back pay, interest on back pay, reinstatement or other equitable relief.(1)

Federal law covers the same types of discrimination as state law except for sexual orientation and provides the same remedies.(2) In addition, employees who successfully prove discrimination under federal law can be awarded compensatory and punitive damages as well as attorney and court fees. However, federal law applies only to employers with 15 or more employees.

Employees who feel they have been discriminated against can file a claim under state law or federal law. Because federal law provides for compensatory and punitive damages as well as attorney and court fees, employees are more likely to find attorneys willing to take their cases. However, if they work for employers with fewer than 15 employees or allege discrimination based on sexual orientation, their only recourse is to file their case under state law. Because state law does not provide the same level of remedy, it is more difficult for employees to find attorneys willing to take their cases.

Potential for legislation

In 2010, the legislature considered House Bill 10-1269, which would enable more victims of discrimination and harassment in the workplace to seek redress through the court system. HB10-1269 serves as a model for potential legislation that would expand employee protection by allowing employees who prove workplace discrimination in state courts to recover compensatory and punitive damages, as well as attorney and court fees. HB10-1269, sponsored by Rep. Carol Levy, would have capped compensatory and punitive damages based on the size of the employer.

These changes would have been implemented in phases. During the first year, remedies would have been made available to employees of employers with 15 or more workers. In the second year, the remedies would have been provided to employees working for employers with 14 or fewer workers.

HB10-1269 was anticipated to increase general fund expenditures by $75,445 and 1.1 FTE in FY 2010-11 and $163,955 and 2.5 FTE in FY 2011-12. The projected state fiscal impact was based on an anticipated increase in caseload at the Colorado Civil Rights Division.(3) House amendments were added to ensure that costs would be covered. The amendments required one or both parties to pay fees for conciliation or mediation.(4)

Research and evidence of effectiveness

Actual and perceived discrimination occurs in the workplace. In the Level Playing Field Institute's How-Fair Survey of 2,400 employees from across the nation, 53 percent of employees of color reported having been stereotyped in the workplace within the past year. The survey's participants ranked working in a discrimination-free environment as a principal workplace value.(5)

In Colorado between 2008 and 2009, the Colorado Civil Rights Commission and Division (CCRCD) handled 712 employment discrimination cases.(6) The number of employment discrimination claims has increased by an average of 10 percent each year between 2006 and 2009. Accordingly, CCRCD predicted 783 cases in FY 2009-10.

Forty other states and the District of Columbia currently provide at least one of the three proposed remedies: compensatory damages, punitive damages and attorney fees. Of those states, 29 states and the District of Columbia offer all three.(7)
Matching state law to federal anti-discrimination law is not a novel concept. Many of Colorado's neighboring states in the Rocky Mountain region provide similar remedies. Arizona, Kansas, Nebraska, South Dakota, and Texas offer compensatory and punitive damages, as well as attorney's fees for successful discrimination cases.(8)

During Colorado's 2009 legislative session, the Plaintiff Employment Lawyers Association testified in favor of a bill similar to HB10-1269, stating
that many workers of small employers have difficulty finding representation. Affording Coloradans the possibility of obtaining attorney's fees increases their ability to obtain legal counsel and action if they feel they have been discriminated against.
Discrimination in the workplace is costly for employers as well as employees. Losing and replacing managers and professionals who leave their jobs because of unfairness and discrimination in the workplace costs roughly $64 billion a year nationwide.(9)

Estimate of impact and benefits

Providing more adequate remedies would lead to greater enforcement of Colorado's laws against workplace discrimination by increasing victims' ability to seek legal action. Under current law, people who are discriminated against on the basis of sexual orientation or who work for employers of 14 or fewer have more limited ability to seek legal recourse.

Under HB10-1269, employees would have been compensated not only for financial losses, but also emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-financial losses. Allowing plaintiffs in successful cases to obtain attorney's fees and damages would make it easier for those who do not have financial resources to hire an attorney.

The current remedies provide limited incentive for employers to take action to avoid or redress existing discrimination.10 By increasing available remedies, the future legislation would potentially decrease discrimination in the workplace and empower victims.

Legislation would have the potential to promote fair and equal treatment for all Coloradans working for employers of every size. More people would be able to seek legal justice and take action against discrimination in the workplace.

***

End notes
1. Division of Regulatory Agencies: Colorado Civil Rights Division. (2009). 2009 Statutes.
2. U.S. Equal Employment Opportunity Commission. (2010). Civil Rights Act of 1964 Title VII.
3. Colorado Legislative Council. (2010). Fiscal Note on HB 10-1269.
4. Colorado Legislative Council. (2010). House Committee of Reference Report. HB 10-1269.
5. Level Playing Field Institute. (2003). The HOW-FAIR Study 2003: How Opportunities in the Workplace and Fairness Affect Intergroup Relations.
6. Colorado Civil Rights Commission and Division. (2009). 2009 Annual Report.
7. Alaska Stat. § 18.80.130; Ariz. Rev. Stat. § 41-1461, 41-1481, 41-1472 ; Cal. Gov. Code § 12965; Conn. Gen. Stat. Ann. Ch 814c §§ 46a-86, 89, & 104; Del. Code Ann. Title 19, § 715; D.C. Code §§2-1403.13 &1403.16; Fla. Stat. Ann. §§ 760.07& 760.11; Haw. Rev. Stat. § 368-17; Ida Code § 67-5908; Ill. Comp. Stat. Ann. §§ 5/7-101, 820 ILCS 112/30; Iowa Code Ann. § 216.15; Kan. Stat. Ann. § 44-1002, 44-1042, & 44-1127; Ken. Rev. Stat. Ann. §§ 344.230 & 344.450; La. Rev. Stat. Ann. §§ 23.303 & 51.2264; Me. Rev. Stat. Ann. Title 5, §§ 4613 & 4622; Md. Ann. Code §§ 20-1009, 20-1013, & 20-1015; Mass. Gen. Laws Ann. Ch. 151b §9; Mich. Comp. Laws Ann. § 37.2102; Minn. Stat. Ann. §§ 363a.03, 363a.08, 363a.29, & 363a.33; Mo. Rev. Stat. § 213.111; Mont. Code Ann. §§ 49-2-505 & 49-2-506; Neb. Rev. Stat. Ann. §§ 48-1102, 48-1119 & 48-1120; N.H. Rev. Stat. § 354a.21, Schneider v. Plymouth State College ; N.J. Stat. Ann. § 34:19-1, Maczik v. Gilford Park Yacht Club; N.M. Stat. Ann. §28-1-11; NYC Admin. Code §8-502a, McIntyre v. Manhattan Ford, Lincoln-Mercury; N.C. Gen. Stat. Ann. §§143-422.1; N.D. Cent. Code § 14-.02.4-219; Ohio Rev. Code Ann. §§ 4112.05; Oreg. Stat. §§20.107, 659a.001, 659.012, & 659a.885; 43 Penn. Cons. Stat. §§ 954, 955, 959.2, 960, 961.2, 962; R.I. Gen. Laws §§ 28-5-24 & 28-5-29.1; S.D. Cod. Laws §§ 20-13-35.1; Tenn. Code Ann. §§ 41-21-306 & 4-21-311; Tex. Lab. Code §§ 21.210, 21.258, 21.2585, & 21.259; Utah Code Ann. § 34a-5-107; Verm. Stat. Ann. Title 21 §§ 495b; Virg. Code Ann. §§ 40.1-28.6, 51.5-40; Wash. Rev. Code Ann. §§ 49.60.030; W.V. Code §§ 5-11-13; Wisc. Stat. Ann. § 111.397.
8. Ibid
9. Colorado Protects All. (2010). Equal Rights Colorado Fact Sheet.
10. Pay Equity Commission. (2008). Fulfilling the Promise: Closing the Pay Gap for Women and Minorities in Colorado.