Text of CO SB 72 (2011)

First Regular Session Sixty-eighth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 11-0170.01 Christy Chase SENATE BILL 11-072 Senate Committees House Committees Judiciary A BILL FOR AN ACT CONCERNING THE CREATION OF REMEDIES IN EMPLOYMENT 101 DISCRIMINATION CASES BROUGHT UNDER STATE LAW. 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 permit an award of compensatory or punitive damages or attorney fees and costs to a plaintiff who prevails in a complaint before the Colorado civil rights commission (commission) or in a lawsuit alleging a discriminatory or unfair employment practice under state law, even in cases of intentional discrimination. While federal SENATE SPONSORSHIP Carroll, Bacon, Boyd, Giron, Hodge, Hudak, Morse, Steadman, Tochtrop, Aguilar, Guzman, Johnston HOUSE SPONSORSHIP Levy, Court, Fields, Tyler 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. employment antidiscrimination laws allow such damages in cases where intentional discrimination is found, and allows an award of reasonable attorney fees and costs, only employers who employ 15 or 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 intentional employment discrimination. Section 1 of the bill establishes the "Job Protection and Civil Rights Enforcement Act of 2011", which would allow the additional remedies of compensatory and punitive damages in employment discrimination cases brought under state law against employers where intentional discrimination is proven. 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 limits the amount of compensatory and punitive damages to the amounts specified in the federal "Civil Rights Act of 1991" and instructs the commission or court to consider the size and assets of the defendant and the egregiousness of the discriminatory or unfair employment practice when determining the amount of damages to award the victim. When a plaintiff claims compensatory or punitive damages in a civil lawsuit, either party to the action is entitled to demand a jury trial. Additionally, the court may award the prevailing party reasonable attorney fees and costs. Section 2 of the bill authorizes the commission to appoint a working group of employers and employees to assist in education and outreach efforts to foster compliance with laws prohibiting discriminatory or unfair employment practices. The remedies available under the bill would apply to causes of action alleging discriminatory or unfair employment practices accruing on or after January 1, 2013. Be it enacted by the General Assembly of the State of Colorado: 1 SB11-072 -2- SECTION 1. 24-34-405, Colorado Revised Statutes, is 1 REPEALED AND REENACTED, WITH AMENDMENTS, to read: 2 24-34-405. Relief authorized - short title. (1) THIS SECTION 3 SHALL BE KNOWN AND MAY BE CITED AS THE "JOB PROTECTION AND CIVIL 4 RIGHTS ENFORCEMENT ACT OF 2011". 5 (2) (a) IN ADDITION TO THE RELIEF AUTHORIZED BY SECTION 6 24-34-306 (9), THE COMMISSION OR THE COURT MAY ORDER AFFIRMATIVE 7 RELIEF THAT THE COMMISSION OR COURT DETERMINES TO BE 8 APPROPRIATE, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING: 9 (I) REINSTATEMENT OR HIRING OF EMPLOYEES, WITH OR WITHOUT 10 BACK PAY. IF THE COMMISSION OR COURT ORDERS BACK PAY, THE 11 EMPLOYER, EMPLOYMENT AGENCY, OR LABOR ORGANIZATION 12 RESPONSIBLE FOR THE DISCRIMINATORY OR UNFAIR EMPLOYMENT 13 PRACTICE SHALL PAY THE BACK PAY TO THE PERSON WHO WAS THE VICTIM 14 OF THE PRACTICE. 15 (II) FRONT PAY; OR 16 (III) ANY OTHER EQUITABLE RELIEF THE COMMISSION OR COURT 17 DEEMS APPROPRIATE. 18 (b) IF THE COMMISSION OR COURT ORDERS BACK PAY, THE 19 LIABILITY FOR BACK PAY ACCRUES FROM A DATE NOT MORE THAN TWO 20 YEARS PRIOR TO THE FILING OF A CHARGE WITH THE DIVISION. THE 21 COMMISSION OR COURT SHALL REDUCE AN AWARD OF BACK PAY BY ANY 22 AMOUNT OF ACTUAL EARNINGS OF, OR AMOUNTS THAT COULD HAVE BEEN 23 EARNED WITH REASONABLE DILIGENCE BY, THE PERSON WHO WAS THE 24 VICTIM OF THE DISCRIMINATORY OR UNFAIR EMPLOYMENT PRACTICE. 25 (3) (a) IN ADDITION TO THE RELIEF AVAILABLE PURSUANT TO 26 SUBSECTION (2) OF THIS SECTION, IN A PROCEEDING OR CIVIL ACTION 27 SB11-072 -3- BROUGHT BY A COMPLAINING PARTY OR PLAINTIFF UNDER THIS PART 4 1 AGAINST A RESPONDENT OR DEFENDANT WHO IS FOUND TO HAVE ENGAGED 2 IN AN INTENTIONAL DISCRIMINATORY OR UNFAIR EMPLOYMENT PRACTICE, 3 THE COMPLAINING PARTY OR PLAINTIFF MAY RECOVER COMPENSATORY 4 AND PUNITIVE DAMAGES AS SPECIFIED IN THIS SUBSECTION (3). A 5 COMPLAINING PARTY OR PLAINTIFF SHALL NOT BE AWARDED 6 COMPENSATORY OR PUNITIVE DAMAGES WHEN THE RESPONDENT OR 7 DEFENDANT IS FOUND TO HAVE ENGAGED IN AN EMPLOYMENT PRACTICE 8 THAT IS UNLAWFUL SOLELY BECAUSE OF ITS DISPARATE IMPACT. 9 (b) EXCEPT AS LIMITED BY THE "COLORADO GOVERNMENTAL 10 IMMUNITY ACT", ARTICLE 10 OF TITLE 24, C.R.S., A COMPLAINING PARTY 11 OR PLAINTIFF MAY RECOVER PUNITIVE DAMAGES AGAINST A RESPONDENT 12 OR DEFENDANT IF THE COMPLAINING PARTY OR PLAINTIFF DEMONSTRATES 13 BY A 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 FOR 19 OTHER PECUNIARY LOSSES, EMOTIONAL PAIN, SUFFERING, INCONVENIENCE, 20 MENTAL ANGUISH, LOSS OF ENJOYMENT OF LIFE, AND OTHER 21 NONPECUNIARY LOSSES. 22 (d) THE TOTAL AMOUNT OF COMPENSATORY AND PUNITIVE 23 DAMAGES AWARDED PURSUANT TO THIS SUBSECTION (3) SHALL NOT 24 EXCEED THE AMOUNTS SPECIFIED IN 42 U.S.C. SEC. 1981a (b) (3); EXCEPT 25 THAT, FOR EMPLOYERS THAT EMPLOY FEWER EMPLOYEES THAN THE 26 NUMBER SPECIFIED IN 42 U.S.C. SEC. 1981a (b) (3) (A), THE TOTAL 27 SB11-072 -4- AMOUNT OF COMPENSATORY AND PUNITIVE DAMAGES AWARDED 1 PURSUANT TO THIS SUBSECTION (3) SHALL NOT EXCEED THE AMOUNT 2 SPECIFIED IN 42 U.S.C. SEC. 1981a (b) (3) (A). IN DETERMINING THE 3 APPROPRIATE LEVEL OF DAMAGES TO AWARD A COMPLAINING PARTY OR 4 PLAINTIFF WHO HAS BEEN THE VICTIM OF AN INTENTIONAL 5 DISCRIMINATORY OR UNFAIR EMPLOYMENT PRACTICE, THE COMMISSION OR 6 COURT SHALL CONSIDER THE SIZE AND ASSETS OF THE RESPONDENT OR 7 DEFENDANT AND THE EGREGIOUSNESS OF THE INTENTIONAL 8 DISCRIMINATORY OR UNFAIR EMPLOYMENT PRACTICE. 9 (e) COMPENSATORY OR PUNITIVE DAMAGES AWARDED PURSUANT 10 TO THIS SUBSECTION (3) ARE IN ADDITION TO, AND DO NOT INCLUDE, 11 FRONT PAY, BACK PAY, INTEREST ON BACK PAY, OR ANY OTHER TYPE OF 12 RELIEF AWARDED PURSUANT TO SUBSECTION (2) OF THIS SECTION. 13 (4) IF A COMPLAINING PARTY OR PLAINTIFF IN A PROCEEDING 14 BEFORE THE COMMISSION OR IN A CIVIL ACTION FILED UNDER THIS PART 4 15 SEEKS COMPENSATORY OR PUNITIVE DAMAGES PURSUANT TO SUBSECTION 16 (3) OF THIS SECTION, ANY PARTY IN THE CIVIL ACTION MAY DEMAND A 17 TRIAL BY JURY. 18 (5) (a) IN ANY PROCEEDING OR CIVIL ACTION UNDER THIS PART 4, 19 THE COMMISSION OR COURT MAY AWARD REASONABLE ATTORNEY FEES 20 AND COSTS TO THE PREVAILING PARTY. 21 (b) IT IS THE INTENT OF THE GENERAL ASSEMBLY THAT THE 22 COMMISSION'S OR COURT'S DISCRETION TO AWARD REASONABLE 23 ATTORNEY FEES AND COSTS SHALL BE GUIDED BY STANDARDS 24 ESTABLISHED THROUGH JUDICIAL INTERPRETATION OF THE DISCRETION 25 GIVEN TO COURTS TO MAKE SUCH AWARDS IN CASES BROUGHT UNDER 26 TITLE VII OF THE FEDERAL "CIVIL RIGHTS ACT OF 1964", 42 U.S.C. SEC. 27 SB11-072 -5- 2000e, AS AMENDED. 1 SECTION 2. 24-34-305 (1) (c), Colorado Revised Statutes, is 2 amended to read: 3 24-34-305. Powers and duties of commission. (1) The 4 commission has the following powers and duties: 5 (c) (I) To investigate and study the existence, character, causes, 6 and extent of unfair or discriminatory practices as defined in parts 4 to 7 7 of this article and to formulate plans for the elimination thereof OF THOSE 8 PRACTICES by educational or other means. 9 (II) IN FURTHERANCE OF ITS EDUCATIONAL EFFORTS TO REDUCE 10 INSTANCES OF DISCRIMINATORY OR UNFAIR EMPLOYMENT PRACTICES, THE 11 COMMISSION MAY CREATE A VOLUNTEER WORKING GROUP REPRESENTING 12 BOTH EMPLOYER AND EMPLOYEE INTERESTS TO ASSIST IN EDUCATION AND 13 OUTREACH EFFORTS TO FOSTER COMPLIANCE WITH PART 4 OF THIS 14 ARTICLE. 15 SECTION 3. Act subject to petition - effective date - 16 applicability. (1) This act shall take effect at 12:01 a.m. on the day 17 following the expiration of the ninety-day period after final adjournment 18 of the general assembly (August 10, 2011, if adjournment sine die is on 19 May 11, 2011); except that, if a referendum petition is filed pursuant to 20 section 1 (3) of article V of the state constitution against this act or an 21 item, section, or part of this act within such period, then the act, item, 22 section, or part shall not take effect unless approved by the people at the 23 general election to be held in November 2012 and shall take effect on the 24 date of the official declaration of the vote thereon by the governor. 25 (2) The provisions of this act shall apply to causes of action 26 SB11-072 -6- alleging discriminatory or unfair employment practices accruing on or 1 after January 1, 2013. 2 SB11-072 -7-