Employment Law 101:
A Primer
Presented by:
Danielle S. Urban and Joan M. Bechtold
For the Faculty of Federal Advocates
November 13, 2015
Phone: (303) 218-3650; (303) 865-3733
Email: durban@laborlawyers.com;
jmbechtold@sweeneybechtold.com
1
Scope of the Presentation
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Title VII of the Civil Rights Act
The Age Discrimination in Employment Act
Americans with Disabilities Act
42 U.S.C Section 1981
42 U.S.C. Section 1983
Family and Medical Leave Act
Colorado Anti-Discrimination Act
Legal Off-Duty Conduct Statute
Colorado Wage Act
Wage Transparency Act
Colorado Common Law Claims
SWEENEY & BECHTOLD, LLC
jmbechtold@sweeneybechtold.com
303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
Employment At-Will
Colorado is an employment at-will state.
“Employment at-will” means that absent a contract, public
policy, or statute to the contrary, an employer may end the
employment relationship at any time, for any reason, with or
without cause, warning, or notice.
Title VII
• Covers private employers with 15 or more employees
• Also covers:
- Federal, state and local governmental entities
- Labor organizations with 15 or more members
- Labor organizations in industries affecting commerce where the
union causes or attempts to cause employer to discriminate
- Employment agencies
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Unlawful discrimination includes:
• Discriminatory treatment
• Policies or practices that have the effect of discriminating
against a protected individual
• Harassment based on a protected status
• Retaliation
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Protected Classes
 Race/Color
 Family Leave
 National Origin
 Sexual Orientation
 Gender
(includes bisexuality and gender identity)
 Pregnancy
 Veteran status/military
 Religion
 Injured Workers (workers’ comp)
 Age
 Whistleblower
 Disability
 Genetic screen results
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jmbechtold@sweeneybechtold.com
303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
What are some things that could be “discrimination”
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Hiring/not hiring
Firing
Demotion
Pay decrease
Discipline (suspension, warning, etc.)
Evaluation
Scheduling
SWEENEY & BECHTOLD, LLC
jmbechtold@sweeneybechtold.com
303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
Methods of Proving Title VII Violations
• Direct evidence:
– Usually consists of discriminatory statements or comments
made by decision makers and directed at the employee or
protected class, in conjunction with the adverse action.
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jmbechtold@sweeneybechtold.com
303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
Methods of Proving Title VII Violations
Indirect evidence.
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Circumstantial evidence usually established through the 3-prong test
established by McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).
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Plaintiff must set out a prima facie case from which discriminatory intent
can be inferred. The defendant then has the burden of articulating a
legitimate non-discriminatory reason for the adverse action. Finally, the
plaintiff must prove the articulated reason was a pretext for discrimination.
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jmbechtold@sweeneybechtold.com
303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
The Mixed Motive Analysis
Cases where both legitimate and illegitimate reasons motivated
the employment decision. In these cases, the plaintiff need only
present sufficient evidence for a reasonable jury to conclude by a
preponderance of the evidence, that race, color, religion, sex or
national origin was a motivating factor for the employment
practice.
The burden of persuasion then shifts to the employer to show that
it would have taken the same action in the absence of the
impermissible motivating factor.
SWEENEY & BECHTOLD, LLC
jmbechtold@sweeneybechtold.com
303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
Remedies
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Back pay and benefits.
Reinstatement or front pay and benefits.
Compensatory damages for emotional pain and suffering,
inconvenience, mental anguish, loss of enjoyment of life and
other non-pecuniary losses.
Punitive damages if the employer is found to have acted with
malice or reckless indifference to the plaintiff’s federally
protected rights.
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303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
Remedies (continued)
5.
Compensatory and punitive damages are capped based on the
size of the employer
6.
Attorneys’ fees and costs, including expert witness fees
7.
Injunctive and declaratory relief
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jmbechtold@sweeneybechtold.com
303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
Common Defenses to Title VII Claims
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Employment decision made for a legitimate,
non-discriminatory reason.
Bona fide occupational qualification
After acquired evidence defense
Failure to mitigate
Unconditional offer of reinstatement
Failure to exhaust administrative remedies
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jmbechtold@sweeneybechtold.com
303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
The Age Discrimination in Employment Act Covers
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Private employers engaged in commerce that have at least 20
employees for each working day, in each of 20 or more calendar
weeks in the current or preceding calendar year; and
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Federal government, political subdivisions of states, interstate
agencies, employment agencies and labor unions.
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jmbechtold@sweeneybechtold.com
303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
The Age Discrimination in Employment Act Covers
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The ADEA protects individuals who are at least 40
years of age.
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Requires exhaustion of administrative remedies.
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jmbechtold@sweeneybechtold.com
303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
Methods
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Methods of proving discrimination under the ADEA
are similar with the exception of the mixed motive
analysis.
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Plaintiff has the burden of proving that age was the
“but-for” cause of the employer’s adverse
employment decision.
SWEENEY & BECHTOLD, LLC
jmbechtold@sweeneybechtold.com
303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
Remedies
Derived from the Fair Labor Standards Act and not Title VII.
They include:
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Employment, reinstatement or promotion
Damages limited to reimbursement for lost wages
Injunctive relief
Liquidated damages in the form of double damages if
plaintiff proves the employer willfully violated the ADEA
Attorneys’ fees
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jmbechtold@sweeneybechtold.com
303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
Common defenses to an age discrimination claim:
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Age is a bona fide occupational qualification reasonably
necessary to the normal operation of the employer’s
business
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Legitimate non-discriminatory reason, i.e., the employment
action was made for reasons other than age
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303-865-3733
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Durban@laborlawyers.com
303-218-3650
Retaliation
Adversely affecting a person’s working conditions
because the person has opposed harassment or
discrimination, filed a harassment or discrimination
complaint, or participated in the investigation of a
complaint
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303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
What does that mean?
• ANYTHING that dissuades someone from doing something
they have a right to do, whether it affects the terms and
conditions of their job or not
• Discourage a complaint; discourage participation in an
investigation of a complaint; adverse employment action;
ostracize associates
SWEENEY & BECHTOLD, LLC
jmbechtold@sweeneybechtold.com
303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
Americans with Disabilities Act (“ADA”)
Purpose: to prohibit discrimination against a qualified individual on
the basis of a disability with regard to job application procedures,
hiring, promotions, discharge or employees, job training, and other
terms, conditions, or privileges of employment. 42 U.S.C. § 12112.
Jurisdiction: covers private employers engaged in an industry
affecting commerce with more than 15 employees. 42 U.S.C. §
12111(5)(A).
Common Defenses to ADA Claims
1. The employment decision was made for a legitimate non-discriminatory reason.
2. For claims of discrimination because of religion, sex, or national origin, a bona fide
occupational qualification (“BFOQ”) that is reasonably necessary to the normal operation of
the business may serve as a defense to employment actions.
3. Failure to mitigate damages.
4. If an employer makes an unconditional job offer to reinstate the plaintiff to a position
substantially equivalent to the one sought, and the plaintiff rejects the offer and cannot
prove that it was not feasible to return to work due to special circumstances, then the
plaintiff’s claim for back pay is cut off as of the date the unconditional offer was made. Ford
Motor Co. v. EEOC, 458 U.S. 219 (1982).
Section 1981
Section 1981 applies to employees protected based on
race, color, ancestry and ethnic discrimination:
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Does not apply to gender, religion, age, or
national origin discrimination
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White individuals may make Section 1981
claims despite the language in the statute
SWEENEY & BECHTOLD, LLC
jmbechtold@sweeneybechtold.com
303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
Advantages of a Section 1981 Action
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Applies to all employers regardless of size
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Applies to independent contractors
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No administrative prerequisites
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Unlimited compensatory and punitive damages
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jmbechtold@sweeneybechtold.com
303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
42 U.S.C. § 1983
Purpose: Section 1983 provides a remedy for the violation of rights conferred by the federal
Constitution and certain statutes: “Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State…, subjects…any citizen…to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party
injured….” The injured party must point to another source of law for the substantive rights that
they seek to enforce.
Section 1983 in the Employment Context: Most employees who bring claims under Section
1983 do so under three theories: (1) retaliation against the exercise of free speech; (2)
deprivation of property without due process, and (3) Fourteenth Amendment equal protection
violations.
Remedies: Remedies under Section 1983 are broad. Except as otherwise explained with
respect to claims against the State, all legal and equitable relief is available, including, in the
employment context, back pay, front pay, compensatory damages, punitive damages, and
attorneys’ fees, and costs.
Family and Medical Leave Act (“FMLA”)
Purpose: To provide job protection for employees (1) with serious health conditions, (2) who
care for family members with serious health conditions, (3) who will have a child born, placed, or
adopted into the family, (4) who care for family members in the armed forces undergoing
medical treatment, recuperation, or therapy for a serious injury or illness, or (5) who require
leave for a “qualifying exigency” related to a family member’s active duty in the armed forces.
Jurisdiction: Covers employers engaged in commerce who employ 50 or more employees (all
employees are counted, whether they are part-time, full time, or on leave) for each working day
during each of 20 or more calendar workweeks (not necessarily consecutive) in the current or
preceding year. 29 U.S.C. § 2611(4).
To be eligible for FMLA, an employee must have been employed for at least 12 months (does
not have to be consecutive, but must have occurred within the previous 7 years) by the
employer and worked at least 1,250 hours during the previous 12-month period. The employer
also must employ at least 50 employees within 75 miles of that employee’s worksite. 29 U.S.C.
Colorado Anti-Discrimination Act
The CADA makes it a violation of state law for an employer to refuse to
hire, discharge, refuse to promote, demote, harass, or otherwise
discriminate against an employee because of the employee’s disability,
race, creed, color, sex, sexual orientation (including gender identity),
religion, age, national origin, marriage to a co-worker, or ancestry.
Unlike federal law, the CADA applies to all Colorado employers,
regardless of company size.
SWEENEY & BECHTOLD, LLC
jmbechtold@sweeneybechtold.com
303-865-3733
FISHER & PHILLIPS LLP
Durban@laborlawyers.com
303-218-3650
Legal Off-Duty Conduct Statute (a/k/a “Smokers’
Rights” Statute), C.R.S. § 24-34-402.5
Prohibits termination of an employee due to that employee engaging in any lawful activity off
premises of the employer during nonworking hours.
Defenses:
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The conduct relates to a bona fide occupational qualification.
The conduct is reasonably and rationally related to the employee’s work activities.
Termination is necessary to avoid a conflict of interest with any responsibilities to the employer or the
appearance of such a conflict of interest.
Remedies:
a.
b.
All wages and benefits that would have been due up to and including the date of judgment.
Mandatory attorneys’ fees award to prevailing plaintiffs if the employer has more than 15 employees.
Colorado Wage Act, C.R.S. §§ 8-4-101, et seq.
Purpose: The Colorado Wage Act sets forth the frequency by which an
employer must pay its employees (C.R.S. § 8-4-103), the limitations on
employer deductions from employee paychecks (C.R.S. § 8-4-105), and the
rules by which an employer must pay an employee upon separation from
employment (C.R.S. § 8-4-109), among other requirements.
Remedies: Prevailing plaintiffs can recover the amount of wages due,
reasonable attorneys’ fees, and statutory penalties.
Wage Transparency Act, C.R.S. § 24-34-402(1)(i)
Prohibits employers from:
a. Taking adverse action against an employee for disclosing,
comparing, or otherwise discussing the employee’s wages, or
b. Requiring employees to sign a waiver or other document denying
them the right to disclose their wage information, unless
otherwise permitted by federal law.
Colorado Common Law Claims
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Contract based claims
Tort claims
Wrongful Discharge in Violation of Public Policy
Intentional Interference with Contract
Final Questions?
Presented by:
Danielle S. Urban
Fisher & Phillips LLP
(303) 218-3650
durban@laborlawyers.com
Presented by:
Joan M. Bechtold
Sweeney & Bechtold, LLC
(303) 865-3733
jmbechtold@sweeneybechtold.com
Thank you.
Danielle S. Urban and Joan M. Bechtold
November 13, 2014