Truth matters. And Denver Health has not been forthright with its workforce, the public, and likely its own Board of Directors about the legal positions its lawyers have taken in court . . . where it COUNTS. We are grateful for the interest that this LGBT-discrimination litigation has generated, particularly because Denver Health still markets itself as an LGBT-friendly workplace. These divergent positions in court versus in public, however, are impossible to reconcile. And worse, we anticipate that Denver Health will continue to mislead its employees, Board members, and the public about its legal campaign to divest its workforce and thousands of other LGBT public servants of any remedy for intentional discrimination, harassment, and retaliation under the Colorado Anti-Discrimination Act (CADA).
Q: What is the status of the litigation?
This matter has been pending at the Colorado Supreme Court since June 11, 2019, when the Colorado LGBT Bar Association and the Colorado Plaintiff’s Employment Lawyers Association (PELA) submitted amicus (friend of the Court) briefs in support of our cross-petition for certiorari. After the Colorado Court of Appeals issued its decision on April 4, 2019 rejecting Denver Health’s claim of absolute immunity from LGBT discrimination claims under CADA, Denver Health sought certiorari (review) at the Colorado Supreme Court. Houchin cross-petitioned for certiorari because (among other reasons) the April 4, 2019 decision violated basic Constitutional equal protection principles by treating similarly situated public servants differently based solely on where they work. Under the April 4, 2019 decision, employees technically employed by the State could receive CADA’s full protections and remedies whereas those working for one of its numerous spun-off political subdivisions like municipal/county governments, Special Districts, and school districts would NOT.
Thus, the workplace rights of MOST of Colorado’s LGBT public servants have hung in the balance for over seven months now. Worse, public entity employers have started citing the Houchin case to assert that their LGBT employees enjoy no rights or remedies against intentional discrimination or harassment either.
Q: Whom does this litigation affect?
The Houchin v. Denver Health case affects every LGBT public servant working at Denver Health and at every county or municipal government, special district (for fire protection, sanitation, water treatment, recreation, cultural facilities, etc.) and school district. Accordingly, this litigation directly impacts every LGBT+ nurse, fire fighter, teacher, social worker, law enforcement officer, city or county employee, rec center staff, code enforcement professional, etc.–namely, the people who make our communities WORK.
Q: What is Denver Health’s primary legal argument?
Denver Health argues that because of changes to CADA in 2013 (HB13-1136) that took effect on January 1, 2015, CADA became more like a personal injury claim (tort) for which ALL public employers enjoy immunity from prosecution under the Colorado Governmental Immunity Act (CGIA).Indeed, as a matter of public policy, the legislature long ago immunized taxpayer-funded public entities from tort claims, which are the kinds of legal claims typically resulting from someone’s negligence or buffoonery. Think about it: if we citizens could sue the State of Colorado every time one of its employees had a car accident or made a mistake, our Colorado treasury would be bankrupted. And so, our legislature struck a balance: public entities are typically immune from tort claims unless the legislature expressly waives that CGIA immunity. Right now, the parties are battling about two fundamental issues: (1) are discrimination claims really like “torts” now just because the legislature authorized compensatory damages (e.g. pain/suffering damages) against public entities in 2013? and (2) did the legislature in 2013 intend waive the CGIA immunity for public entities like municipal/county governments, Special Districts and school districts?
Indeed, in 2013, the legislature did waive the CGIA immunity of ALL public entities for compensatory damages, but left in place their immunity from punitive damages that are available against private employers. And in no case did the legislature intend to transform CADA into a tort for which public entities like Denver Health enjoy ABSOLUTE immunity from LGBT discrimination claims. On the contrary, in the preamble to that important legislation–i.e. the Job Protection and Civil Rights Act of 2013, HB13-1136–the legislature expressly stated its intent to provide equal remedies to LGBT employees (e.g. compensatory damages, attorneys’ fees) that are available to employees protected under federal law, Title VII, based on race, ethnicity, gender, age, disability, religion, etc. Besides, employment discrimination is not a PERSONAL injury at all, even though its victims suffer dire consequences and extensive damage. Rather, employment discrimination is an act of economic violence against an entire group of people that prevents them competing on equal footing in a competitive economy.
Thus, according to Denver Health, when HB13-1136 went into effect on January 1, 2015, CADA stopped protecting its LGBT workforce against discrimination, harassment, and retaliation. And Denver Health is leading the charge to immunize all public entities like itself from LGBT discrimination claims on a statewide basis.
Q: Did Denver Health notify its workforce of this alleged fundamental change in their workplace rights, protections, and remedies?
No. At a public hearing on October 23, 2017, Denver Health General Counsel Scott Hoye acknowledged that employees were provided NO notice of this alleged fundamental change in their workplace rights as of January 1, 2015, even though such notice would be “relevant” to “some” employees–i.e. its LGBT ones particularly.
Worse, Denver Health has continued to promote itself as an LGBT-friendly workplace, effectively luring LGBT talent to a workplace where, according to General Counsel Hoye, there are no protections against intentional discrimination, harassment, or retaliation. Its EEO policy published prominently on its website recruiting page STILL promises to treat LGBT employees like any other group protected under CADA based upon race, gender, ethnicity, religion, etc. When an LGBT employee, Brent Houchin, attempted to exercise his anti-discrimination rights under CADA in 2017, however, Denver Health argued absolute immunity from LGBT discrimination claims under CADA instead of bothering to defend on the merits. For that reason, we have postured Mr. Houchin’s breach of contract and promissory estoppel claims as class-based, anticipating that other LGBT employees at Denver Health have also detrimentally relied on Denver Health’s broken promise of legal protection against intentional discrimination. After all, the LGBT community is talent-rich and when offered truthful information, would likely choose employment where such basic anti-discrimination protections exist.
Q: I heard Brent Houchin violated patient privacy rights under HIPAA and deserved to be fired. What makes him think Denver Health discriminated against him because he’s gay?
No doubt, in MOST cases, discrimination is difficult to prove but easy to allege. And so experienced EEO lawyers and investigators look for inconsistencies, implausibilities, illegalities, and departures from published policies in the employer’s stated reason termination. We look for witnesses who can offer information, corroborate other witnesses, and validate hunches. And, we look for and examine as many written documents and policies as we can get our grubby little hands on because “truth requires proof.”
It is true Denver Health alleges, in the Termination Notice, that it summarily fired Houchin for “two HIPPA [sic] violations in a six month period.” Both alleged violations involved reports of employee drug diversion at Denver Health–i.e. stealing drugs from patients and the public for personal use.
But Denver Health’s explanation crumbles upon examination (1) Denver Health did not even spell correctly the name of the law that Houchin allegedly violated; (2) Denver Health subsequently admitted that Houchin never had ANY previous violations or infractions prior to the ONE incident for which he was allegedly terminated, already repudiating its Termination Notice–(3) in the ONE incident for which he was allegedly terminated, Houchin acted in full compliance with Denver Health’s own HIPAA (patient privacy) and Drug and Alcohol-Free Workplace Policy, which requires the imposition of “investigative leave” for employees credibly suspected of drug diversion; (4) DEA regulations expressly require Denver Health thoroughly to investigate credible reports of employee drug diversion; (5) Denver Health fired Houchin without consulting his longtime supervisor and carried out the termination while she was on vacation, a decision she adamantly opposed; (6) prior to his termination, Houchin had endured weeks of dismissive and rude treatment from the ostensible decision-maker, co-Defendant Tim Hansen, whom Employer’s Council sent over just seven weeks prior to Houchin’s termination to fill the Interim Chief Human Resources Officer vacancy on a temp-to-hire basis; (7) co-Defendant Tim Hansen made rude, homophobic, and unnecessarily critical comments about Houchin to other HR staff, stating that he was “taken aback” by Houchin’s “openness” about his sexual orientation; (8) co-Defendant Tim Hansen now denies that he fired Houchin, and blames General Counsel Scott Hoye for ordering Houchin’s termination and directing him to prepare the botched Termination Notice; (9) Denver Health did not comply with its own HIPAA and performance management procedures in terminating Houchin, etc.
Any ONE of these facts would suffice to establish the pretextual nature of Denver Health’s stated reason for firing Houchin. These facts not only call into question Denver Health’s reason for terminating Houchin, but also raise troubling public health concerns about a potential culture of employee drug diversion that Houchin was trying to investigate. Put simply, Denver Health abruptly fired the guy, Houchin, for allegedly violating an employee’s “patient privacy” while he was discharging Denver Health’s duty under DEA regulations and its own policy to investigate credible evidence of that employee’s on-the-job drug diversion. Scary. But likely because of these established facts, Denver Health has NEVER defended this matter on the merits. Quite the contrary, Denver Health has instead insisted that it enjoys full immunity from prosecution for intentional LGBT discrimination. Perceptions of absolute immunity breed lawlessness and abuse.
Q: When will we get a decision from the Colorado Supreme Court?
We simply do not know. In this stage of the process, we are waiting to hear IF the Colorado Supreme Court will entertain the case. And it’s a long-shot: the Colorado Supreme Court hears about 8% of the petitions for certiorari presented to it. But the fact that it has taken so long could be a good sign, at least according to the poor clerk whom I hassle each month. And since our case was decided on April 4, 2019, the Colorado Court of Appeals has issued a unanimous decision in Williams v. Elder that accepts our arguments in total. Thus, there’s hope.
Q: What can I do if I believe that my employer is discriminating against me because of my LGBT status?
Become a little detective. Because “truth requires proof”, the more evidence you have in the form of policies, emails, recordings, videos, contemporaneous notes, witness statements, etc. the better off you will be. And in this day and age, jurors have come to expect SOMETHING in the form of audio, video, or documentary proof given that virtually all of use carry smartphones. For example, in one recent case, the employer claimed that it fired an otherwise mild-mannered employee after he allegedly became irate, abusive, crazed and “scary” in a meeting with HR and his general manager; his recording of the entire meeting on his smartphone put the issue to rest and settled his case quickly.
Give your employer a chance to address your concerns. Once made aware of your worries, many employers will do the right thing: take your concerns seriously, conduct some type of investigation, and figure out how to fix the underlying problem. Then again, many employers will also do the wrong thing: dismiss your concerns, conduct a sham investigation, and concoct some pretext to fire you in retaliation. Fortunately and unfortunately, legal claims do not accrue until an employee suffers damages in the form of a termination. And so, although it feels risky for an employee to raise concerns about workplace discrimination and harassment, it is the EMPLOYER, not the employee, who legally carries more at risk in that situation. Besides, if you get fired for complaining about harassment, disparate treatment, and abuse at work, you will be better off elsewhere while you vindicate your legal rights in court: YOU deserve to work where you’re celebrated.
Please stay tuned. We will update you with new developments.
Merrily Archer, Esq., M.S.W.
January 31, 2020
EEO Legal Solutions LLC