• Colorado Bans Sexual Orientation and Religious Discrimination in the Workplace
  • June 27, 2007 | Author: Judith A. (Jude) Biggs
  • Law Firm: Holland & Hart LLP - Boulder Office
  • On May 25, 2007, Colorado Governor Bill Ritter signed legislation that revises the Colorado Anti-Discrimination Act (“CADA”) to prohibit discrimination in employment on the basis of religion, sexual orientation and gender identity. Currently, the CADA protects employees based on race, creed, color, sex, age, national origin, and ancestry. According to the Human Rights Campaign, Colorado’s new legislation (Senate Bill 07-025) makes Colorado the 20th state to pass job-bias protection against gays, lesbians and bisexuals and the 17th to protect transgendered individuals, like transsexuals and those whose gender identity, gender-related appearance, or gender-related self-image is different from their biological or anatomical sex. The new law takes effect on August 8, 2007.

    Under the new amendments to the CADA, it is a discriminatory or unfair employment practice for an employer to refuse to hire, to promote or demote, to harass during the course of employment, or to discriminate in matters of compensation against any otherwise qualified person because of the person’s sexual orientation or religion. The legislation defines “sexual orientation” broadly, as “a person’s orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or an employer’s perception thereof.”

    The CADAcontinues to require employees, who wish to claim harassment, to file a complaint with the appropriate authority at their workplace. In addition, such employees must prove that the employer failed to initiate a reasonable investigation of their complaint and to take prompt remedial action if appropriate.

    Religious organizations or associations are entirely exempt from the nondiscrimination provisions, unless the organization or association is supported in part by public tax money or borrowing. The law also allows a religious organization to require employees who perform work related to the religious mission of the organization to belong to its religion. As a result, a church can require its employees to be members, but if it receives public money, it must follow the other nondiscrimination requirements of the CADA (such as not discriminating based on race). The law is silent on what happens if the church refuses to hire a homosexual or transgendered individual, on religious grounds.

    While the bill was being debated, certain members of the state legislature pushed for adoption of a gender-specific dress code section. That provision was ultimately rejected from the final bill that was signed into law. With respect to dress codes, the new law simply states that an employer may require employees to follow a dress code, so long as it is reasonable and applied consistently. The law is silent on what that means generally, and in particular, what differences are permitted based on gender. Therefore, you may want to adopt a simple “professional attire” or “business attire” standard.

    How should you deal with transgender issues? A few other states have had such laws on the books for awhile, so Colorado may look to those states for help. For instance, several cases have been decided under Minnesota law, which prohibits discrimination based on transgender identity. In one case in 2000, Minnesota courts ultimately concluded that it was not discriminatory to require a male-to-female transsexual employee to use either of two single-use bathrooms, rather than the women’s bathrooms that were scattered throughout the complex, including one near her workstation. In a 2001 case, Minnesota courts concluded that an employee failed to prove harassment, when she complained about a transgender colleague (a male who had changed to a female) using the women’s faculty bathroom, because the alleged harassment was not “severe or pervasive” enough to be actionable. In addition, other factors may have affected the decision in that case, because the complaining teacher made the complaint in front of students; failed to follow up on an offer to talk about her concerns with the principal; and refused alternatives, such as using a bathroom in the nurses office or a bathroom used by students.

    Lessons for Colorado Employers

    Although you may not have been able to discriminate against employees based on their sexual orientation in the past (because other laws, such as the lawful offsite conduct statute, might cover such cases), it is now official that you cannot discriminate on the basis of sexual orientation or transgender status. As with all new laws, there is little guidance on how to implement this amendment, or what the courts will consider to be legal or illegal actions by employers. Therefore, continue to base your employment related decisions on legitimate business reasons, not on assumptions that a homosexual, gay or transgender employee will pose problems that other employees will not pose. Try your best to accommodate with compassion the needs of employees who are going through the process of changing physically from one sex to another; for instance, an employee in that situation may need time off for surgery and recovery from surgery. At the same time, keep in mind the needs of your other employees; for instance, many employees will not want to share a restroom with a member of the opposite sex, so you may need to figure out a schedule or provide a variety of options, particularly during the period of change. Of course, all of this is more easily said than done, so stay tuned for developments!