Colorado § 24-34-405 - Relief authorized - short title.

§ 24-34-405. Relief authorized - short title.

(1) This section shall be known and may be cited as the "Job Protection and Civil Rights Enforcement Act of 2013".

(2) (a) In addition to the relief authorized by section 24-34-306 (9), the commission or the court may order affirmative relief that the commission or court determines to be appropriate, including the following relief, against a respondent who is found to have engaged in an unfair or discriminatory employment practice:

(I) Reinstatement or hiring of employees, with or without back pay. If the commission or court orders back pay, the employer, employment agency, or labor organization responsible for the discriminatory or unfair employment practice shall pay the back pay to the person who was the victim of the practice.

(II) Front pay; or

(III) Any other equitable relief the commission or court deems appropriate.

(b) If the commission or court orders back pay, the liability for back pay accrues from a date not more than two years prior to the filing of a charge with the division. The commission or court shall reduce an award of back pay by any amount of actual earnings of, or amounts that could have been earned with reasonable diligence by, the person who was the victim of the discriminatory or unfair employment practice.

(3) (a) In addition to the relief available pursuant to subsection (2) of this section, in a civil action brought by a plaintiff under this part 4 against a defendant who is found to have engaged in an intentional discriminatory or unfair employment practice, the plaintiff may recover compensatory and punitive damages as specified in this subsection (3). The court shall not award a plaintiff compensatory or punitive damages when the defendant is found to have engaged in an employment practice that is unlawful solely because of its disparate impact.

(b) (I) Except as limited by the "Colorado Governmental Immunity Act", article 10 of this title, and except as provided in subparagraph (II) of this paragraph (b), a plaintiff may recover punitive damages against a defendant, other than the state or any political subdivision, commission, department, institution, or school district of the state, if the plaintiff demonstrates by clear and convincing evidence that the defendant engaged in a discriminatory or unfair employment practice with malice or reckless indifference to the rights of the plaintiff. However, if the defendant demonstrates good-faith efforts to comply with this part 4 and to prevent discriminatory and unfair employment practices in the workplace, the court shall not award punitive damages against the defendant.

(II) The court shall not award punitive damages in a civil action involving a claim of failure to make a reasonable accommodation for a person with a disability if the defendant demonstrates good-faith efforts to identify and make a reasonable accommodation that would provide the person with a disability an equally effective opportunity and would not cause an undue hardship on the operation of the defendant's business.

(c) A plaintiff may recover compensatory damages against a defendant for other pecuniary losses, emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.

(d) (I) Except as provided in subparagraph (II) of this paragraph (d), the total amount of compensatory and punitive damages awarded pursuant to this subsection (3) shall not exceed the amounts specified in 42 U.S.C. sec. 1981a (b)(3).

(II) For employers who employ fewer than fifteen employees, the total amount of compensatory and punitive damages awarded pursuant to this subsection (3) shall not exceed the following amounts:

(A) If the defendant has one or more employees but fewer than five employees in each of twenty or more calendar weeks in either the current or preceding calendar year, ten thousand dollars; or

(B) If the defendant has five or more employees but fourteen or fewer employees in each of twenty or more calendar weeks in either the current or preceding calendar year, twenty-five thousand dollars.

(III) In determining the appropriate level of damages to award a plaintiff who has been the victim of an intentional discriminatory or unfair employment practice, the court shall consider the size and assets of the defendant and the egregiousness of the intentional discriminatory or unfair employment practice.

(IV) If a plaintiff asserts claims of intentional discriminatory or unfair employment practices under this article and under applicable federal anti-discrimination laws, the plaintiff may recover relief under this section only once for the same injuries, damages, or losses.

(e) Compensatory or punitive damages awarded pursuant to this subsection (3) are in addition to, and do not include, front pay, back pay, interest on back pay, or any other type of relief awarded pursuant to subsection (2) of this section.

(f) The remedies specified in this subsection (3) apply to causes of action alleging discriminatory or unfair employment practices accruing on or after January 1, 2015.

(g) Repealed.

(4) If a plaintiff in a civil action filed under this part 4 seeks compensatory or punitive damages pursuant to subsection (3) of this section, any party to the civil action may demand a trial by jury.

(5) In any civil action under this part 4, the court may award reasonable attorney fees and costs to the prevailing plaintiff. If the court finds that an action or defense brought pursuant to this part 4 was frivolous, groundless, or vexatious as provided in article 17 of title 13, C.R.S., the court may award costs and attorney fees to the defendant in the action.

(6) Except when federal law is silent on the issue, this section shall be construed, interpreted, and applied in a manner that is consistent with standards established through judicial interpretation of Title VII of the federal "Civil Rights Act of 1964", as amended, 42 U.S.C. sec. 2000e et seq.; the federal "Age Discrimination in Employment Act of 1967", as amended, 29 U.S.C. sec. 621 et seq.; titles I and V of the federal "Americans with Disabilities Act of 1990", as amended, 42 U.S.C. sec. 12111 et seq.; and the federal "Civil Rights Act of 1991", 42 U.S.C. sec. 1981a.

(7) Nothing in this section precludes a party from asserting any other available statutory or common law claims.

(8) (a) As used in this subsection (8), "aggrieved party" means a person who has filed a complaint alleging an intentional discriminatory or unfair employment practice, including an applicant for a position in the state personnel system or an employee in the state personnel system.

(b) The commission, a commissioner, an administrative law judge appointed pursuant to part 10 of article 30 of this title, or, in cases involving applicants for positions in or employees in the state personnel system, the state personnel board established pursuant to section 14 of article XII of the state constitution shall not award damages to an aggrieved party alleging an intentional discriminatory or unfair employment practice. An aggrieved party who is seeking damages as authorized in subsection (3) of this section must file a civil action in a court of competent jurisdiction to recover those damages; except that punitive damages are not recoverable against the state or any political subdivision, commission, department, institution, or school district of the state.

(c) (I) Upon issuance of an order by the commission pursuant to section 24-34-306 (9) and subsection (2) of this section or of a written decision by the state personnel board pursuant to section 24-50-125.4 in which the commission or state personnel board makes a finding of an intentional discriminatory or unfair employment practice, an aggrieved party may file a civil action in a district court in this state seeking damages as authorized in subsection (3) of this section.

(II) For complaints filed with the commission, the aggrieved party must file the action for damages within thirty days after the date the commission mails notice of the order issued pursuant to section 24-34-306 (9) and subsection (2) of this section. If the aggrieved party fails to file an action for damages within thirty days after the date the notice of the order is mailed, the action is barred, no district court has jurisdiction to hear the action, and the commission's order becomes final and is subject to judicial review pursuant to section 24-34-307.

(III) (A) For complaints filed with the state personnel board, if an administrative law judge issues the initial written decision on behalf of the state personnel board, the aggrieved party may not file a civil action until after the expiration of the thirty-day period specified in section 24-50-125.4 (4) for filing an appeal. If a party does not file an appeal of the administrative law judge's initial decision with the state personnel board in accordance with section 24-50-125.4 (4), the aggrieved party must file the civil action for compensatory damages within thirty days after the expiration of the appeal period specified in section 24-50-125.4 (4). If a party files an appeal with the state personnel board in accordance with section 24-50-125.4 (4), the aggrieved party must file the civil action for compensatory damages within thirty days after the date the state personnel board transmits the notice of its decision on the appeal in accordance with section 24-50-125.4 (6).

(B) If the aggrieved party fails to file an action for compensatory damages within thirty days after the appeal period expires or the date the state personnel board's notice of decision is transmitted, whichever is applicable pursuant to sub-subparagraph (A) of this subparagraph (III), the action for compensatory damages is barred, no district court has jurisdiction to hear the action, and the state personnel board's decision becomes final and is subject to judicial review pursuant to sections 24-50-125.4 (3) and 24-4-106 (11).

(d) (I) If the aggrieved party initially filed a complaint with the commission, the aggrieved party and the district court shall serve a copy of the civil action complaint on the commission, and upon receipt of the civil action complaint, the commission's order is automatically stayed pending the outcome of the civil action, in which case the commission's decision is not a final order subject to judicial review pursuant to section 24-34-307 until the district court issues a final judgment in the civil action for damages.

(II) If the aggrieved party is an applicant for a position in or an employee in the state personnel system, the aggrieved party and the district court shall serve a copy of the civil action complaint on the state personnel board, and upon receipt of the complaint, the state personnel board's decision is automatically stayed pending the outcome of the civil action, in which case the state personnel board's decision is not a final order subject to judicial review pursuant to sections 24-50-125.4 (3) and 24-4-106 (11) until the district court issues a final judgment in the civil action for compensatory damages.

(e) (I) In a civil action brought pursuant to this subsection (8) for damages after the commission or state personnel board makes a finding of an intentional discriminatory or unfair employment practice, the district court shall consider the issue of whether the aggrieved party is entitled to damages and the amount of damages, if awarded.

(II) The district court may award attorney fees and costs in connection with the action for damages consistent with subsection (5) of this section.

(III) The district court shall expedite the action for damages and set the matter for trial at the earliest practical time.

(f) Upon entering a final judgment in a civil action brought pursuant to this subsection (8), the district court shall serve notice of the judgment on the parties and the commission or state personnel board, as appropriate. Once the commission or state personnel board receives a final judgment from the district court, the commission or state personnel board shall incorporate the district court judgment in its order or decision, which becomes a final order subject to judicial review in accordance with section 24-34-307 or sections 24-50-125.4 (3) and 24-4-106 (11), as applicable.

(g) A claim filed pursuant to this subsection (8) by an aggrieved party against the state for compensatory damages for an intentional unfair or discriminatory employment practice is not subject to the "Colorado Governmental Immunity Act", article 10 of this title.

Source: L. 79: Entire part R&RE, p. 932, § 3, effective July 1. L. 89: Entire section amended, p. 1042, § 8, effective July 1. L. 2013: Entire section R&RE, (HB 13-1136), ch. 168, p. 549, § 1, effective August 7. L. 2022: (3)(a) amended and (3)(g) repealed, (HB 22-1367), ch. 473, p. 3456, § 6, effective August 10.

Cross references: For the legislative declaration in HB 22-1367, see section 1 of chapter 473, Session Laws of Colorado 2022.

ANNOTATION

Law reviews. For note, "Front Pay Under the Age Discrimination in Employment Act", see 63 Den. U.L. Rev. 149 (1986). For comment, "Colorado's Lifestyle Discrimination Statute: A Vast and Muddled Expansion of Traditional Employment Law", see 67 U. Colo. L. Rev. 143 (1996).

Annotator's note. Since § 24-34-405 is similar to § 24-34-405 as it existed prior to its 2013 repeal and reenactment, relevant cases construing that provision have been included in the annotations to this section.

Section is equitable in nature. This section was intended to invoke only the equitable powers of the court, and not to create a legal claim for damages. Cont'l Title Co. v. District Court, 645 P.2d 1310 (Colo. 1982).

And does not give rise to jury trial. The award of back pay is an integral part of the equitable remedy provided by this section and is not intended to create a legal remedy invoking the right to a jury trial. Cont'l Title Co. v. District Court, 645 P.2d 1310 (Colo. 1982).

Front pay authorized by subsection (2) is an equitable remedy and is not barred by the Colorado Governmental Immunity Act (CGIA). Williams v. Elder, 2019 COA 172, 479 P.3d 43, aff'd, 2020 CO 88, 477 P.3d 694; Denver Health & Hosp. Auth. v. Houchin, 2020 CO 89, 477 P.3d 149.

Compensatory damages remedy does not and could not lie in tort and is not subject to the CGIA. Compensatory damages do not relieve tort-like personal injuries and are incidental to the primary purpose of ending discriminatory employment practices. Williams v. Elder, 2019 COA 172, 479 P.3d 43, aff'd, 2020 CO 88, 477 P.3d 694; Denver Health & Hosp. Auth. v. Houchin, 2020 CO 89, 477 P.3d 149.

The word "state" in subsection (8)(g) includes all political subdivisions of the state able to seek immunity under the CGIA, including county sheriff's office. Williams v. Elder, 2019 COA 172, 479 P.3d 43, aff'd, 2020 CO 88, 477 P.3d 694; Denver Health & Hosp. Auth. v. Houchin, 2020 CO 89, 477 P.3d 149.

Cease-and-desist order may be commission's affirmative action, and the commission, in conjunction with such affirmative action, may award medical expenses associated with pregnancy as back pay. Further, the remedy of reinstatement is not a precondition to reimbursement of discriminatorily withheld employment compensation. Civil Rights Comm'n v. Travelers Ins., 759 P.2d 1358 (Colo. 1988).

Victim of discrimination entitled only to back pay which makes her "whole". A victim of discriminatory employment practices is entitled only to the amount of back pay which will make her "whole", i.e., that which she would have received in the absence of the discriminatory conduct. City & County of Denver v. Colo. Civil Rights Comm'n, 638 P.2d 837 (Colo. App. 1981).

Monetary award for accrued annual leave or secondary training authorized where unfair termination. This section does not authorize a monetary award for accrued annual leave or for the value of secondary training unless the loss of such benefits results from a termination in violation of § 24-34-402. City & County of Denver v. Colo. Civil Rights Comm'n, 638 P.2d 837 (Colo. App. 1981).

Award of back pay independent of an order requiring affirmative action not permitted. The commission does not have authority to award back pay in the absence of an affirmative action such as reinstatement. World Wide Const. Servs. v. Chapman, 683 P.2d 1198 (Colo. 1984).

State personnel board did not have the jurisdiction to award front pay in a case that originated in 2010, because front pay was not an authorized remedy pursuant to this section until 2015. Williams v. Dept. of Pub. Safety, 2015 COA 180, 369 P.3d 760.

Claims for equitable relief pursuant to this section are not barred by the CGIA. Houchin v. Denver Health & Hosp. Auth., 2020 CO 89, 477 P.3d 149; Williams v. Elder, 2020 CO 88, 477 P.3d 694.