Text of CO HB 1269 (2010)

Second Regular Session Sixty-seventh General Assembly STATE OF COLORADO INTRODUCED LLS NO. 10-0529.01 Christy Chase HOUSE BILL 10-1269 House Committees Senate Committees Judiciary A BILL FOR AN ACT CONCERNING THE CREATION OF REMEDIES AVAILABLE IN 101 EMPLOYMENT DISCRIMINATION CASES. 102 Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) Current law does not allow an award of compensatory or punitive damages or attorney fees and costs to a plaintiff who prevails in a lawsuit alleging a discriminatory or unfair employment practice under state law. While federal employment antidiscrimination laws allow such damages and reasonable attorney fees and costs, only employers who employ 15 or HOUSE SPONSORSHIP Levy, Casso, Court, Ferrandino, Hullinghorst, Judd, McFadyen, Middleton, Miklosi, Pommer, Solano, Tyler, Weissmann, Carroll T., Frangas, Kagan, Labuda, Pace, Schafer S. SENATE SPONSORSHIP Carroll M., Bacon, Boyd, Hodge, Hudak, Morse, Romer, Steadman, Tapia Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment. Capital letters indicate new material to be added to existing statute. Dashes through the words indicate deletions from existing statute. more employees are subject to federal law. Moreover, victims of employment discrimination on the basis of sexual orientation are not afforded protections under federal law. Thus, employees who work for employers with fewer than 15 employees or who claim employment discrimination on the basis of sexual orientation are not allowed compensatory or punitive damages or to recover reasonable attorney fees and costs when they prove a case of employment discrimination. The bill establishes the "Workplace Fairness and Civil Rights and Remedies Act of 2010", which would allow the additional remedies of compensatory and punitive damages in employment discrimination cases brought under state law. These damages would be in addition to the remedies allowed under current law, namely, front pay, back pay, interest on back pay, reinstatement or hiring, and other equitable relief that may be awarded. Compensatory damages are to compensate a plaintiff for other pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses. If the plaintiff shows by a preponderance of the evidence that the defendant engaged in a discriminatory or unfair employment practice with malice or reckless indifference to the rights of the plaintiff, the plaintiff may recover punitive damages. The bill caps the overall damages, including both compensatory and punitive, if applicable, that may be awarded to a plaintiff, based on the size of the employer defendant, as follows: ! For employers with 14 or fewer employees, not more than $25,000; ! For employers with between 15 and 100 employees, not more than $50,000; ! For employers with between 101 and 200 employees, not more than $100,000; ! For employers with between 201 and 500 employees, not more than $200,000; and ! For employers with more than 500 employees, not more than $300,000. When a plaintiff claims compensatory or punitive damages in a civil lawsuit, either party to the action is entitled to demand a jury trial. If the case is tried by a jury, the court is not to inform the jury of the damage caps. Additionally, the court may award the prevailing party reasonable attorney fees and costs. In the first year after the bill takes effect, compensatory and punitive damages and reasonable attorney fees and costs would only be available against an employer with 15 or more employees. For actions accruing on or after August 11, 2011, these remedies would be available against any employer, regardless of the number of employees it employs. HB10-1269 -2- Be it enacted by the General Assembly of the State of Colorado: 1 SECTION 1. 24-34-405, Colorado Revised Statutes, is 2 REPEALED AND REENACTED, WITH AMENDMENTS, to read: 3 24-34-405. Relief authorized - short title. (1) THIS SECTION 4 SHALL BE KNOWN AND MAY BE CITED AS THE "WORKPLACE FAIRNESS AND 5 CIVIL RIGHTS AND REMEDIES ACT OF 2010". 6 (2) (a) IN ADDITION TO THE RELIEF AUTHORIZED BY SECTION 7 24-34-306 (9), THE COMMISSION OR THE COURT MAY ORDER AFFIRMATIVE 8 RELIEF THAT THE COMMISSION OR COURT DETERMINES TO BE 9 APPROPRIATE, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING: 10 (I) REINSTATEMENT OR HIRING OF EMPLOYEES, WITH OR WITHOUT 11 BACK PAY, WHICH, IF AWARDED, SHALL BE PAID BY THE EMPLOYER, 12 EMPLOYMENT AGENCY, OR LABOR ORGANIZATION RESPONSIBLE FOR THE 13 DISCRIMINATORY OR UNFAIR EMPLOYMENT PRACTICE; 14 (II) FRONT PAY; OR 15 (III) ANY OTHER EQUITABLE RELIEF DEEMED APPROPRIATE BY THE 16 COMMISSION OR COURT. 17 (b) IF THE COMMISSION OR COURT ORDERS BACK PAY, THE 18 LIABILITY FOR BACK PAY SHALL ACCRUE FROM A DATE NOT MORE THAN 19 TWO YEARS PRIOR TO THE FILING OF A CHARGE WITH THE DIVISION. THE 20 COMMISSION OR COURT SHALL REDUCE AN AWARD OF BACK PAY BY ANY 21 AMOUNT OF ACTUAL EARNINGS OF, OR AMOUNTS THAT COULD HAVE BEEN 22 EARNED WITH REASONABLE DILIGENCE BY, THE PERSON WHO WAS THE 23 VICTIM OF THE DISCRIMINATORY OR UNFAIR EMPLOYMENT PRACTICE. 24 (3) (a) IN ADDITION TO THE RELIEF AVAILABLE PURSUANT TO 25 SUBSECTION (2) OF THIS SECTION, IN A PROCEEDING OR CIVIL ACTION 26 BROUGHT BY A COMPLAINING PARTY OR PLAINTIFF UNDER THIS PART 4 27 HB10-1269 -3- AGAINST A RESPONDENT OR DEFENDANT WHO IS FOUND TO HAVE ENGAGED 1 IN AN INTENTIONAL DISCRIMINATORY OR UNFAIR EMPLOYMENT PRACTICE, 2 THE COMPLAINING PARTY OR PLAINTIFF MAY RECOVER COMPENSATORY 3 AND PUNITIVE DAMAGES AS SPECIFIED IN THIS SUBSECTION (3) AND IN 4 ACCORDANCE WITH SUBSECTION (9) OF THIS SECTION. A COMPLAINING 5 PARTY OR PLAINTIFF SHALL NOT BE AWARDED COMPENSATORY OR 6 PUNITIVE DAMAGES WHEN THE RESPONDENT OR DEFENDANT IS FOUND TO 7 HAVE ENGAGED IN AN EMPLOYMENT PRACTICE THAT IS UNLAWFUL SOLELY 8 BECAUSE OF ITS DISPARATE IMPACT. 9 (b) A COMPLAINING PARTY OR PLAINTIFF MAY RECOVER PUNITIVE 10 DAMAGES AGAINST A RESPONDENT OR DEFENDANT, OTHER THAN A 11 GOVERNMENT, GOVERNMENT AGENCY, OR POLITICAL SUBDIVISION OF THE 12 STATE, IF THE COMPLAINING PARTY OR PLAINTIFF DEMONSTRATES BY A 13 PREPONDERANCE OF THE EVIDENCE THAT THE RESPONDENT OR 14 DEFENDANT ENGAGED IN A DISCRIMINATORY OR UNFAIR EMPLOYMENT 15 PRACTICE WITH MALICE OR RECKLESS INDIFFERENCE TO THE RIGHTS OF 16 THE COMPLAINING PARTY OR PLAINTIFF. 17 (c) A COMPLAINING PARTY OR PLAINTIFF MAY RECOVER 18 COMPENSATORY DAMAGES AGAINST A RESPONDENT OR DEFENDANT, 19 OTHER THAN THE STATE AND ANY COMMISSION, DEPARTMENT, OR 20 INSTITUTION OF THE STATE, FOR OTHER PECUNIARY LOSSES, EMOTIONAL 21 PAIN, SUFFERING, INCONVENIENCE, MENTAL ANGUISH, LOSS OF ENJOYMENT 22 OF LIFE, AND OTHER NONPECUNIARY LOSSES. 23 (d) THE TOTAL AMOUNT OF DAMAGES AWARDED PURSUANT TO 24 THIS SUBSECTION (3) SHALL NOT EXCEED THE FOLLOWING AMOUNTS FOR 25 EACH COMPLAINING PARTY OR PLAINTIFF, REGARDLESS OF WHETHER THE 26 DAMAGES ARE COMPENSATORY, PUNITIVE, OR A COMBINATION OF 27 HB10-1269 -4- COMPENSATORY AND PUNITIVE DAMAGES: 1 (I) IF THE RESPONDENT OR DEFENDANT HAS FOURTEEN OR FEWER 2 EMPLOYEES IN EACH OF TWENTY OR MORE CALENDAR WEEKS IN EITHER 3 THE CURRENT OR PRECEDING CALENDAR YEAR, TWENTY-FIVE THOUSAND 4 DOLLARS; 5 (II) IF THE RESPONDENT OR DEFENDANT HAS FIFTEEN OR MORE 6 EMPLOYEES AND ONE HUNDRED OR FEWER EMPLOYEES IN EACH OF 7 TWENTY OR MORE CALENDAR WEEKS IN EITHER THE CURRENT OR 8 PRECEDING CALENDAR YEAR, FIFTY THOUSAND DOLLARS; 9 (III) IF THE RESPONDENT OR DEFENDANT HAS MORE THAN ONE 10 HUNDRED EMPLOYEES AND TWO HUNDRED OR FEWER EMPLOYEES IN EACH 11 OF TWENTY OR MORE CALENDAR WEEKS IN EITHER THE CURRENT OR 12 PRECEDING CALENDAR YEAR, ONE HUNDRED THOUSAND DOLLARS; 13 (IV) IF THE RESPONDENT OR DEFENDANT HAS MORE THAN TWO 14 HUNDRED EMPLOYEES AND FIVE HUNDRED OR FEWER EMPLOYEES IN EACH 15 OF TWENTY OR MORE CALENDAR WEEKS IN EITHER THE CURRENT OR 16 PRECEDING CALENDAR YEAR, TWO HUNDRED THOUSAND DOLLARS; AND 17 (V) IF THE RESPONDENT OR DEFENDANT HAS MORE THAN FIVE 18 HUNDRED EMPLOYEES IN EACH OF TWENTY OR MORE CALENDAR WEEKS IN 19 EITHER THE CURRENT OR PRECEDING CALENDAR YEAR, THREE HUNDRED 20 THOUSAND DOLLARS. 21 (e) COMPENSATORY OR PUNITIVE DAMAGES AWARDED PURSUANT 22 TO THIS SUBSECTION (3) SHALL BE IN ADDITION TO, AND SHALL NOT 23 INCLUDE, FRONT PAY, BACK PAY, INTEREST ON BACK PAY, OR ANY OTHER 24 TYPE OF RELIEF AWARDED PURSUANT TO SUBSECTION (2) OF THIS SECTION. 25 (4) IN CASES ALLEGING THAT A RESPONDENT OR DEFENDANT 26 ENGAGED IN A DISCRIMINATORY OR UNFAIR EMPLOYMENT PRACTICE BY 27 HB10-1269 -5- FAILING TO PROVIDE A REASONABLE ACCOMMODATION TO A PERSON WITH 1 A DISABILITY WHO IS OTHERWISE QUALIFIED, IT SHALL BE AN AFFIRMATIVE 2 DEFENSE TO AN AWARD OF DAMAGES UNDER THIS SECTION THAT THE 3 RESPONDENT OR DEFENDANT DEMONSTRATED GOOD FAITH EFFORTS, IN 4 CONSULTATION WITH THE PERSON WITH THE DISABILITY WHO INFORMED 5 THE RESPONDENT OR DEFENDANT THAT AN ACCOMMODATION WAS 6 NEEDED, TO IDENTIFY AND MAKE A REASONABLE ACCOMMODATION THAT 7 WOULD PROVIDE THE PERSON WITH THE DISABILITY WITH AN EQUALLY 8 EFFECTIVE OPPORTUNITY AND WOULD NOT CAUSE AN UNDUE HARDSHIP ON 9 THE OPERATION OF THE BUSINESS. 10 (5) (a) IF A PERSON WAS REFUSED ADMISSION INTO OR SUSPENDED 11 OR EXPELLED FROM A UNION, WAS REFUSED EMPLOYMENT OR 12 ADVANCEMENT, OR WAS SUSPENDED OR DISCHARGED FROM EMPLOYMENT, 13 AND THE LABOR ORGANIZATION OR EMPLOYER, AS APPLICABLE, TOOK THE 14 ACTION FOR ANY BONA FIDE REASON OTHER THAN A DISCRIMINATORY OR 15 UNFAIR EMPLOYMENT PRACTICE, THE COMMISSION OR A COURT SHALL NOT 16 ISSUE AN ORDER REQUIRING, AS APPLICABLE: 17 (I) A LABOR ORGANIZATION TO ADMIT OR REINSTATE THE PERSON 18 AS A MEMBER OF A UNION; 19 (II) AN EMPLOYER TO HIRE, REINSTATE, OR PROMOTE THE 20 INDIVIDUAL; OR 21 (III) THE EMPLOYER TO PAY THE INDIVIDUAL BACK PAY. 22 (b) IF THE COMPLAINING PARTY OR PLAINTIFF ESTABLISHES THAT 23 THE RESPONDENT OR DEFENDANT ENGAGED IN A DISCRIMINATORY OR 24 UNFAIR EMPLOYMENT PRACTICE AND THE RESPONDENT OR DEFENDANT 25 DEMONSTRATES THAT HE, SHE, OR IT WOULD HAVE TAKEN THE SAME 26 ACTION IN THE ABSENCE OF THE IMPERMISSIBLE, MOTIVATING FACTOR, THE 27 HB10-1269 -6- COMMISSION OR COURT: 1 (I) MAY GRANT ANY DECLARATORY RELIEF AND INJUNCTIVE 2 RELIEF THE COMMISSION OR COURT DEEMS APPROPRIATE, TOGETHER WITH 3 REASONABLE ATTORNEY FEES AND COSTS THAT THE COMPLAINING PARTY 4 OR PLAINTIFF HAS DEMONSTRATED TO BE ATTRIBUTABLE TO THE PURSUIT 5 OF THE CLAIM OR COMPLAINT; AND 6 (II) SHALL NOT AWARD COMPENSATORY OR PUNITIVE DAMAGES OR 7 ISSUE AN ORDER REQUIRING ANY ADMISSION, REINSTATEMENT, HIRING, 8 PROMOTION, OR PAYMENT OF BACK PAY, AS DESCRIBED IN PARAGRAPH (a) 9 OF THIS SUBSECTION (5). 10 (6) IF A COMPLAINING PARTY OR PLAINTIFF IN A PROCEEDING 11 BEFORE THE COMMISSION OR IN A CIVIL ACTION FILED UNDER THIS PART 4 12 SEEKS COMPENSATORY OR PUNITIVE DAMAGES PURSUANT TO SUBSECTION 13 (3) OF THIS SECTION: 14 (a) ANY PARTY IN THE CIVIL ACTION MAY DEMAND A TRIAL BY 15 JURY; AND 16 (b) THE COURT IN THE CIVIL ACTION SHALL NOT INFORM THE JURY 17 OF THE LIMITATIONS DESCRIBED IN PARAGRAPH (d) OF SUBSECTION (3) OF 18 THIS SECTION. 19 (7) (a) IN ANY PROCEEDING OR CIVIL ACTION UNDER THIS PART 4, 20 THE COMMISSION OR COURT MAY AWARD REASONABLE ATTORNEY FEES 21 AND COSTS TO THE PREVAILING PARTY IN ACCORDANCE WITH SUBSECTION 22 (9) OF THIS SECTION UNLESS THE PREVAILING PARTY IS A GOVERNMENT, 23 GOVERNMENT AGENCY, OR POLITICAL SUBDIVISION OF THE STATE. 24 (b) NOTWITHSTANDING PARAGRAPH (a) OF THIS SUBSECTION (7), 25 IN ANY PROCEEDING OR CIVIL ACTION UNDER THIS PART 4 AGAINST A 26 JUDICIAL OFFICER FOR AN ACT OR OMISSION TAKEN IN THE OFFICER'S 27 HB10-1269 -7- JUDICIAL CAPACITY, THE JUDICIAL OFFICER SHALL NOT BE LIABLE FOR ANY 1 COSTS OR ATTORNEY FEES UNLESS THE ACTION WAS CLEARLY OUTSIDE THE 2 SCOPE OF THE OFFICER'S JURISDICTION. 3 (c) IT IS THE INTENT OF THE GENERAL ASSEMBLY THAT THE 4 COMMISSION'S OR COURT'S DISCRETION TO AWARD REASONABLE 5 ATTORNEY FEES AND COSTS SHALL BE GUIDED BY STANDARDS 6 ESTABLISHED THROUGH JUDICIAL INTERPRETATION OF THE DISCRETION 7 GIVEN TO COURTS TO MAKE SUCH AWARDS IN CASES BROUGHT UNDER 8 TITLE VII OF THE FEDERAL "CIVIL RIGHTS ACT OF 1964", 42 U.S.C. SEC. 9 2000e, AS AMENDED. 10 (8) THIS SECTION SHALL NOT APPLY TO CLAIMS ALLEGING A 11 VIOLATION OF SECTION 24-34-402.5. 12 (9) (a) FOR CAUSES OF ACTION ACCRUING BEFORE AUGUST 11, 13 2011, A COMPLAINING PARTY OR PLAINTIFF MAY RECOVER COMPENSATORY 14 AND PUNITIVE DAMAGES PURSUANT TO SUBSECTION (3) OF THIS SECTION 15 AND REASONABLE ATTORNEY FEES AND COSTS PURSUANT TO SUBSECTION 16 (7) OF THIS SECTION ONLY AGAINST A RESPONDENT OR DEFENDANT WHO 17 EMPLOYS FIFTEEN OR MORE EMPLOYEES IN EACH OF TWENTY OR MORE 18 CALENDAR WEEKS IN THE CURRENT OR PRECEDING CALENDAR YEAR. 19 (b) FOR CAUSES OF ACTION ACCRUING ON OR AFTER AUGUST 11, 20 2011, A COMPLAINING PARTY OR PLAINTIFF MAY RECOVER COMPENSATORY 21 AND PUNITIVE DAMAGES PURSUANT TO SUBSECTION (3) OF THIS SECTION 22 AND REASONABLE ATTORNEY FEES AND COSTS PURSUANT TO SUBSECTION 23 (7) OF THIS SECTION AGAINST ANY RESPONDENT OR DEFENDANT, 24 REGARDLESS OF THE NUMBER OF EMPLOYEES EMPLOYED BY THE 25 RESPONDENT OR DEFENDANT. 26 SECTION 2. Act subject to petition - specified effective date 27 HB10-1269 -8- - applicability. (1) This act shall take effect August 11, 2010; except 1 that, if a referendum petition is filed pursuant to section 1 (3) of article V 2 of the state constitution against this act or an item, section, or part of this 3 act within the ninety-day period after final adjournment of the general 4 assembly, then the act, item, section, or part shall not take effect unless 5 approved by the people at the general election to be held in November 6 2010 and shall take effect on the date of the official declaration of the 7 vote thereon by the governor. 8 (2) The provisions of this act shall apply to causes of action 9 alleging discriminatory or unfair employment practices accruing on or 10 after the applicable effective date of this act. 11 HB10-1269 -9-