Despite considerable opposition from business groups, on May 6, 2013, Colorado Governor John Hickenlooper signed into law the Job Protection and Civil Rights Enforcement Act of 2013 (HB 13-1136)(“JPCREA”). The JPCREA, which has been five years in the making, amends Colorado’s Anti-Discrimination Act (the “CADA”) to enhance remedies for employees of businesses who are subjected to illegal discrimination based on race, color, disability, gender, sexual orientation (excluding transgender status), national origin, ancestry, religion, creed, and age. Before the JPCREA, Colorado was one of only eight states that did not enable employees of small businesses to recover attorney fees, or compensatory or punitive damages in discrimination or retaliation cases.
Prior to the JPCREA, a successful CADA plaintiff could only be awarded reinstatement, back pay, front pay and interest on back pay. The JPCREA enhances remedies for CADA plaintiffs in several ways. First, it allows the court discretion to award a prevailing CADA plaintiff recovery of his or her attorney’s fees (and only allows an employer to recover fees if the plaintiff’s claims were frivolous, groundless, or vexatious). Second, the JPCREA allows awards of compensatory and punitive damages, subject to caps of $10,000 for employers with fewer than five employees, and $25,000 for employers with between 5 and 14 employees, and for employers with 15 or more employees, the sliding scale of damages caps under federal law will apply. Third, the JPCREA allows a CADA plaintiff or defendant employer to demand a trial by jury. Fourth, the JPCREA makes clear that CADA plaintiffs with age discrimination claims are entitled to the same remedies provided by the federal Age Discrimination in Employment Act.
Some of these changes, including the allowance for recovery of reasonable attorney’s fees, go into effect on August 7, 2013, whereas others, including the allowance for recovery of compensatory and punitive damages and the right to trial by jury, do not become effective until January 1, 2015.
Employees who work for smaller employers with fewer than 15 employees not covered by federal civil rights statutes will benefit most from the JPCREA. With the enactment of the JPCREA, the number of CADA claims in Colorado is expected to increase dramatically. Moreover, there is expected to be a rise in state court employment litigation, which historically has proved more dangerous for employers than litigation in federal court.
