Colorado Governor John Hickenlooper has signed legislation that greatly expands remedies available to employees bringing workplace discrimination claims under the Colorado Anti-Discrimination Act (“CADA”). Under the Job Protection and Civil Rights Enforcement Act of 2013 (HB 1136), signed on May 5th, employees alleging discrimination can now seek front pay, back pay, interest on back pay, reinstatement or hiring, attorney’s fees, costs, and punitive and compensatory damages, or liquidated damages, for discriminatory acts or practices based on “malice or reckless indifference to the rights of the plaintiff.” They also have a right to a jury trial. Previously, employees were able to seek only hiring, reinstatement, promotion, and back pay. The new law aligns the remedies available under CADA with those available under Title VII of the Civil Rights Act. The state Act becomes effective January 1, 2015.
Courts awarding any punitive damages must take into account the size and assets of the employer as well as the egregiousness of the intentional discriminatory act or practice. The maximum damages available are limited to the amounts specified in Title VII. Additionally, the Act caps the award of compensatory and punitive damages for employers with fewer than 15 employees. If the employer has from one to four employees, the total amount of compensatory and punitive damages cannot exceed $10,000; if the employer has from five to 14 employees, the total award cannot exceed $25,000.
The Act also provides for attorney’s fees awards to either the plaintiff or the defendant in certain circumstances. A prevailing plaintiff may recover reasonable attorney’s fees and costs. If the court finds the plaintiff’s action was frivolous, groundless, or vexatious, it may award attorney’s fees and costs to the defendant.
In addition to the expanded remedies, the Act removes the 70-year-old age cap on age discrimination claims and allows state employees to seek the same remedies as other plaintiffs under the federal Age Discrimination in Employment Act and the Americans with Disabilities Act.
Significantly, while Title VII applies only to employers with at least 15 employees, CADA applies to all employers (companies with one or more employees). With the passage of the Act, small employers will face potential liability under CADA they never faced under Title VII. Where discrimination claims are based on the protected categories of sexual orientation, ancestry, and creed, both large and small employers will face expanded remedies that are unavailable under Title VII, which does not directly protect sexual orientation, “ancestry,” or “creed.” The Colorado Civil Rights Division will offer a free training program for all employers.