Yesterday, OutFront Colorado published another article touting how LGBT-friendly Denver Health is, “Denver Health to Expand Surgeries Offered for Sex Reassignment.” Earlier this month, OutFront Colorado called Denver Health an “oasis in the desert” of LGBT health care. We are also grateful for the services that Denver Health provides to the LGBT community.
But there’s one BIG problem:
While Denver Health (and the Colorado LGBT community) tout in the press the terrific services that Denver Health provides to the LGBT community, Denver Health continues to argue in court–i.e. where it matters most–that the only law protecting its LGBT employees stopped applying to its workforce on January 1, 2015. Despite acknowledging that this ostensible fundamental change in workplace protections would be “relevant” to “some” Denver Health employees, Denver Health General Counsel Scott Hoye provided no notice to the workforce. On the contrary, on its website and published EEO policies, Denver Health continues to claim that it will treat LGBT employees like any other minority class protected under federal anti-discrimination laws–e.g. race, ethnicity, religion, gender, color, age, disability. In practice, however, when a high-ranking LGBT employee in Denver Health’s HR department brought meritorious LGBT discrimination claims in 2017, however, Denver Health simply claimed that Colorado’s Anti-Discrimination Act (CADA) no longer covered its workforce.
Denver Health continues to argue in court–i.e. where it matters most–that the only law protecting its LGBT employees stopped applying to its workforce on January 1, 2015.
And so, for anyone interested in FACTS, I have briefly summarized Denver Health’s positions, the procedural history and likely litigation trajectory. I have also embedded publicly-available documents like pertinent court orders and motions filed by Denver Health’s attorneys.
- Brent Houchin, former Employee Relations Manager, filed his Complaint in June 2017, alleging unlawful discrimination and retaliation under CADA AND unlawful whistle-blowing reprisals. You may read the factual allegations in his Complaint HERE.
- Instead of answering the factual allegations in the Complaint, Denver Health’s attorneys moved to dismiss it entirely, arguing: (1) Denver Health enjoys absolute immunity from discrimination claims under CADA; and (2) its employees, unlike every other employee in Colorado, have no protection against retaliation for whistle-blowing–e.g. getting fired for expressing concerns about matters in the public interest and/or fulfilling a governmental duty, like reporting waste, fraud, employee drug diversion at a publicly funded hospital. You may read Denver Health’s briefing on these issues HERE.
- On November 7, 2017, Denver District Judge David Goldberg rejected Denver Health’s self-serving arguments that (1) its workforce enjoyed no CADA protections; and worse (2) its workforce has no whistle-blowing remedies for raising internal/external concerns about matters in the public interest–i.e. an unabated employee drug diversion problem that squanders public resources and creates public health risks through drug-addled service delivery. In fact, Judge Goldberg characterized some of Denver Health’s arguments as “absurd” and as leading to unintended consequences. Read HERE.
- Denver Health appealed. Recognizing that this matter affects the public interest, our panel of Court of Appeals judges asked the Colorado Supreme Court to clarify the impact of 2015 amendments to CADA on its previous analysis in Conners v. City of Colorado Springs. HERE. Unfortunately, the Colorado Supreme Court declined to act on this critical problem (i.e. legislation that conflicts with precedent) and the parties proceeded to oral argument on December 11, 2018. Then, Court of Appeals asked the parties to brief whether Denver Health’s interpretation of CADA violated equal protection guarantees in the U.S. and Colorado Constitutions . . . we argued strenuously that Denver Health’s interpretation would create two classes of Colorado public servants treated unequally under the law, which is unconstitutional. You can read Houchin’s and Denver Health’s briefs HERE.
- Then, on April 4, 2019, the Colorado Court of Appeals partially affirmed and partially reversed the district court’s decision, linked HERE. In a 2-1 split, the majority held that public entities such as municipalities, county governments, and “special districts” like Denver Health (e.g. for school, fire, police, water, sanitation, parks/recreation, cultural events and facilities, health care . . .) enjoy governmental immunity from compensatory damages in litigation CADA, but did not buy into Denver Health’s argument of complete immunity from all CADA claims. As a result, LGBT public servants working for one of these numerous spun-off special districts have only limited rights and remedies under CADA, unlike employees working for the State of Colorado or a private employer. Again, we maintain that this uneven scheme violates the equal protection rights of all public servants (but especially LGBT ones) working for one of these numerous political subdivisions like Denver Health.
- Denver Health appealed to the Colorado Supreme Court. Its grouse? The Court of Appeals rejected its claim of complete immunity from employee lawsuits under CADA and thereby exposed Denver Health to litigation and further discovery of the already-damning facts of this case. You can read Denver Health’s brief HERE. On June 28, 2019, we cross-petitioned for certiorari to the Colorado Supreme Court: while we agree that the Colorado Supreme Court should review this matter, we argued that that Court of Appeal’s order (1) betrays the non-discrimination goals inherent in its prior decision in Conners; (2) disregards our legislature’s intent in making compensatory damages available in the 2015 CADA amendments; and (3) violated constitutional equal protection guarantees. You can read our brief HERE.
- Finally, on June 4, 2019, the Colorado Plaintiff’s Employment Lawyers Association (PELA) and the Colorado LGBT Bar Association filed amicus (i.e. friend of the court) briefs in support of Houchin‘s cross-petition, recognizing that this matter affects the employment rights of every Colorado LGBT public servant working for a municipality, county government, school district or special district. Again, the Colorado LGBT Bar Association’s position supports Houchin, not Denver Health.
What happens next?
We wait . . . if the Colorado Supreme Court agrees to review this case, then this matter will determine the anti-discrimination rights of every LGBT public servant in Colorado, including Denver Health’s LGBT workforce. As Employee Relations Manager, Houchin viewed his role as essential to protecting the anti-discrimination rights of Denver Health employees. Houchin is STILL standing up for the rights of Denver Health employees, even those who ridicule him on social media out of misguided loyalty to Denver Health.
But what if the Colorado Supreme Court, again, denies review and lets this published decision stand?
We head back to Denver District Judge David Goldberg’s courtroom to begin litigation, which Denver Health’s motions suspended in November 2017. Notably, pending before Judge Goldberg is a motion to open Houchin’s “promissory estoppel” (i.e. broken promise) claim up to other Denver Health employees who are/were affected by its published-and-broken promises of equal treatment. Indeed, under Colorado employment and contract law, Denver Health cannot have it both ways: publicly promising to treat LGBT employees like any other protected class (e.g. race, ethnicity, gender, age, disability), while claiming in court that LGBT employees enjoy no anti-discrimination protections whatsoever.
Many talented members of the LGBT community choose to work for Denver Health because of its LGBT-friendly reputation. After all, Houchin himself loved his job at Denver Health, in part, because of its work in our LGBT community and notably, he represented Denver Health’s EMPLOYEES on the LGBT committee that he helped form years ago. What happened to Houchin at Denver Health is every LGBT employee’s worst nightmare: after years of “exceptional” service, a subcontractor (and co-defendant here) newly appointed into an interim executive role fired Houchin within weeks of a get-acquainted meeting in which Houchin revealed his longtime marriage to his spouse, Frank. Before carrying out this misdeed, however, the subcontractor complained to several witnesses about Houchin’s “openness”, treated Houchin with overt disrespect, and violated every HR policy calling for progressive discipline before termination.
Perceptions of immunity breed lawlessness and abuse. In its treatment of Houchin, Denver Health declined to follow CADA and its own internal policies because it maintains CADA does not apply and by extension, Houchin is powerless to challenge the intentional LGBT discrimination and retaliation he suffered.
Without its dedicated employees, Denver Health cannot perform much-needed services in the LGBT community. That proposition seems obvious enough. Unfortunately, some local LGBT advocates are comfortable distinguishing between Denver Health’s treatment of its employees and its patients: so long as Denver Health treats its LGBT patients well, it apparently does not matter that Denver Health now insists that its LGBT employees have no rights or remedies against unlawful discrimination, harassment, and retaliation because of their LGBT status. That trade-off–one apparently condoned by LGBT advocacy organizations bestowing “Ally Awards” on Denver Health–reflects the kind of “mission creep” (i.e. doing what’s easy instead of what’s right) that afflicts well-meaning helping organizations. Instead of becoming educated about Denver Health’s legal arguments in the public record that harm LGBT workers, several have castigated Houchin for daring to suggest that Denver Health’s perceptions of CADA immunity make it the OPPOSITE of LGBT-friendly. Indeed, according to Denver Health, LGBT employees could work for any other type of employer (e.g. private, the State of Colorado) EXCEPT Denver Health and get the benefit of CADA’s anti-discrimination protections. By perpetuating the myth of LGBT-friendliness, however, these advocacy organizations effectively dupe their constituents into working for an organization where they enjoy no legal rights against LGBT discrimination, harassment, and retaliation. That’s crazy.
We trust that eventually, the facts will come into sharper focus for the LGBT community and that leaders will understand the important work Houchin has undertaken to advance LGBT rights at Denver Health and every other public entity in Colorado. Until then, we urge LGBT advocates to read the linked documents and make INFORMED judgments about this litigation and Denver Health.
With pride and faith, Merrily
Merrily Archer, Esq., M.S.W.