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) ; (303)

Scope of the Presentation Title VII of the Civil Rights Act The Age Discrimination in Employment Act Americans with Disabilities Act 42 U.S.C Section 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 FISHER & PHILLIPS LLP

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 SWEENEY & BECHTOLD, LLC FISHER & PHILLIPS LLP

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 SWEENEY & BECHTOLD, LLC FISHER & PHILLIPS LLP

Protected Classes SWEENEY & BECHTOLD, LLC FISHER & PHILLIPS LLP  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

What are some things that could be “discrimination” Hiring/not hiring Firing Demotion Pay decrease Discipline (suspension, warning, etc.) Evaluation Scheduling SWEENEY & BECHTOLD, LLC FISHER & PHILLIPS LLP

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. SWEENEY & BECHTOLD, LLC FISHER & PHILLIPS LLP

Methods of Proving Title VII Violations Indirect evidence. Circumstantial evidence usually established through the 3-prong test established by McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). 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. SWEENEY & BECHTOLD, LLC FISHER & PHILLIPS LLP

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 FISHER & PHILLIPS LLP The Mixed Motive Analysis

Remedies 1.Back pay and benefits. 2.Reinstatement or front pay and benefits. 3.Compensatory damages for emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-pecuniary losses. 4.Punitive damages if the employer is found to have acted with malice or reckless indifference to the plaintiff’s federally protected rights. SWEENEY & BECHTOLD, LLC FISHER & PHILLIPS LLP

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 SWEENEY & BECHTOLD, LLC FISHER & PHILLIPS LLP

Common Defenses to Title VII Claims 1.Employment decision made for a legitimate, non-discriminatory reason. 2.Bona fide occupational qualification 3.After acquired evidence defense 4.Failure to mitigate 5.Unconditional offer of reinstatement 6.Failure to exhaust administrative remedies SWEENEY & BECHTOLD, LLC FISHER & PHILLIPS LLP

The Age Discrimination in Employment Act Covers - 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 -Federal government, political subdivisions of states, interstate agencies, employment agencies and labor unions. SWEENEY & BECHTOLD, LLC FISHER & PHILLIPS LLP

The Age Discrimination in Employment Act Covers -The ADEA protects individuals who are at least 40 years of age. - Requires exhaustion of administrative remedies. SWEENEY & BECHTOLD, LLC FISHER & PHILLIPS LLP

Methods -Methods of proving discrimination under the ADEA are similar with the exception of the mixed motive analysis. - Plaintiff has the burden of proving that age was the “but-for” cause of the employer’s adverse employment decision. SWEENEY & BECHTOLD, LLC FISHER & PHILLIPS LLP

Remedies Derived from the Fair Labor Standards Act and not Title VII. They include: 1.Employment, reinstatement or promotion 2.Damages limited to reimbursement for lost wages 3.Injunctive relief 4.Liquidated damages in the form of double damages if plaintiff proves the employer willfully violated the ADEA 5.Attorneys’ fees SWEENEY & BECHTOLD, LLC FISHER & PHILLIPS LLP

Common defenses to an age discrimination claim: -Age is a bona fide occupational qualification reasonably necessary to the normal operation of the employer’s business -Legitimate non-discriminatory reason, i.e., the employment action was made for reasons other than age SWEENEY & BECHTOLD, LLC FISHER & PHILLIPS LLP

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 SWEENEY & BECHTOLD, LLC FISHER & PHILLIPS LLP

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 FISHER & PHILLIPS LLP

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. § 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: - Does not apply to gender, religion, age, or national origin discrimination -White individuals may make Section 1981 claims despite the language in the statute SWEENEY & BECHTOLD, LLC FISHER & PHILLIPS LLP

Advantages of a Section 1981 Action - Applies to all employers regardless of size -Applies to independent contractors -No administrative prerequisites -Unlimited compensatory and punitive damages SWEENEY & BECHTOLD, LLC FISHER & PHILLIPS LLP

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 FISHER & PHILLIPS LLP

Legal Off-Duty Conduct Statute (a/k/a “Smokers’ Rights” Statute), C.R.S. § Prohibits termination of an employee due to that employee engaging in any lawful activity off premises of the employer during nonworking hours. Defenses: a.The conduct relates to a bona fide occupational qualification. b.The conduct is reasonably and rationally related to the employee’s work activities. c.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.All wages and benefits that would have been due up to and including the date of judgment. b.Mandatory attorneys’ fees award to prevailing plaintiffs if the employer has more than 15 employees.

Colorado Wage Act, C.R.S. §§ , et seq. Purpose: The Colorado Wage Act sets forth the frequency by which an employer must pay its employees (C.R.S. § ), the limitations on employer deductions from employee paychecks (C.R.S. § ), and the rules by which an employer must pay an employee upon separation from employment (C.R.S. § ), 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. § (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 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) Presented by: Joan M. Bechtold Sweeney & Bechtold, LLC (303)

Thank you. Danielle S. Urban and Joan M. Bechtold November 13, 2014