July 27, 2007

New Law Bans Employment Discrimination in Colorado Based On Sexual Orientation and Religion

On May 25, 2007, Colorado Governor Bill Ritter signed into law Senate Bill 07-025, which bans employment discrimination based on sexual orientation, gender identity and religion. This new legislation revises the Colorado Anti-Discrimination Act (CADA). Currently, the CADA prohibits discrimination based on disability, race, creed, color, sex and national origin. Once the new amendments to the CADA become effective on August 8, 2007, it will be considered a discriminatory or unfair employment practice for an employer "to refuse to hire" or "to discharge, promote or demote, harass during the course of employment, or discriminate in matters of compensation against any otherwise qualified person" because of that person’s sexual orientation or religion. The legislation broadly defines "sexual orientation" as "a person’s orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or an employer’s perception thereof."

The new law includes a few exceptions. First, religious organizations and associations are entirely exempt from the nondiscrimination provisions unless the organization or association is supported in whole or in part by money raised by taxation or public borrowing. For example, a religious organization is allowed to select and hire individuals of the same religion. In addition, the legislation specifically states that it does not preclude employers from implementing a dress code, so long as the dress code is reasonable and applied consistently. While early versions of the bill allowed employers to require transgendered employees to maintain a "reasonably consistent gender presentation" at work, that language was ultimately removed from the bill.

Although the new legislation adds a number of significant substantive changes to the CADA, the procedural requirements remain the same. As in the past, employees must file a complaint with the appropriate authority at their place of employment if they wish to claim workplace discrimination or harassment. Also as before, for an employer to be held liable for discrimination or harassment, employees must prove that their employer failed to initiate reasonable investigation of their complaint and failed to take prompt and appropriate remedial action.

According to the Human Rights Campaign, Colorado is the 20th U.S. state to ban workplace discrimination on the basis of sexual orientation and the 12th to ban discrimination on the basis of gender identity. With this new ban on additional types of discrimination, state law will afford the citizens of Colorado an increased level of protection currently not available under federal law. Title VII of the Civil Rights Act of 1964 does not expressly prohibit discrimination on the basis of sexual orientation or gender identity. Also, unlike Title VII, which applies only to employers of 15 or more, the CADA applies to all employers, even those with only one employee.

This increased protection allows for new causes of action and may lead to increased litigation. Employers may, however, take steps to help minimize the risk of such litigation. First, we recommend auditing your existing employment handbooks and policies in light of the new legislation. Second, we suggest that employers provide training that addresses the issues of sexual orientation and religion-based discrimination. Finally, employers should continue to base their employment-related decisions on legitimate nondiscriminatory business reasons.

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