UPDATE: Denver Health LGBT Discrimination Case

Two New Developments

1. The Colorado Attorney General Will Submit an Amicus Brief re Whether Public Entities are Immune from State Anti-Discrimination Protections for LGBT Workers, HERE;

2. The Court of Appeals Asks Parties to Brief Whether Denver Health’s Immunity Argument Violates Constitutional Equal Protection Guarantees; HERE.

1.The Colorado Attorney General Will Submit an Amicus Brief re Whether Public Entities are Immune from State Anti-Discrimination Protections for LGBT Workers.

On January 15, 2019, the Colorado Attorney General (AG) notified the Court of Appeals and the parties that it will

accept the invitation of the Court to file a short and narrowly focused brief as amicus curiae presenting the views of the State of Colorado on the application of the Colorado Governmental Immunity Act, §§ 24-10-101 – 120, C.R.S., to claims brought against public entities under the Colorado Anti-Discrimination Act, §§ 24-34-301 – 406, C.R.S.

We are grateful that the new Colorado AG, Phil Weiser, recognizes this case’s fundamental importance to the thousands of LGBT employees working for public entities like municipal and county governments, school districts, and “special districts”–i.e. districts for water, fire protection, sanitation, parks/recreation, cultural facilities, health service, Denver Health. Meanwhile, employment and constitutional rights hang in the balance.

2. The Court of Appeals Asks Parties to Brief Whether Denver Health’s Immunity Argument Violates Federal and Constitutional Equal Protection Guarantees.

The Colorado Court of Appeals has asked the parties to submit supplemental briefs on this question:

To the extent that CADA creates a distinction between (a) employees of the state and (b) employees of the state’s political subdivisions, commissions, departments, institutions, and school districts with respect to the availability of compensatory damages, does that classification violate equal protection guarantees under the United States and Colorado Constitutions?

At oral argument on December 11, 2018, Court of Appeals Judge Michael Berger posed this question to Denver Health counsel Brent Johnson of Fairfield & Woods, who dismissively answered “No.” But this panel of the Court of Appeals has zeroed in on the fundamental problem with Denver Health’s argument that it is an “exotic legal animal” uniquely immune from the Colorado Anti-Discrimination Act (CADA) under the Colorado Governmental Immunity Act (CGIA): it creates two classes of state-employed LGBT employees treated unequally under CADA. According to Denver Health, 2015 changes to the CADA that were designed to expand remedies to LGBT employees created two classes of employees in its own workforce: LGBT employees of Denver Health would NOT be entitled to CADA’s enhanced remedies, but Denver Health employees technically employed by the City of Denver could recover these remedies. We respectfully submit that Denver Health’s interpretation of the 2015 amendments to CADA violates both the United States and Colorado Constitutions, particularly Article 11, Section 6, EQUALITY OF JUSTICE:

Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay.

We are grateful for the opportunity to address this important question. We maintain that Denver Health’s legal position not only violates the employment rights of its workforce, but also their constitutional ones as Colorado and U.S. citizens.

Many talented people in the Front Range LGBT community choose to work for Denver Health because of its LGBT-friendly reputation. Given that Denver Health’s General Counsel, Scott Hoye, believes that Denver Health is uniquely immune from the only law protecting LGBT employees, how can Denver Health maintain this false front? In fact, Denver Health’s unconstitutional interpretation of the only law protecting LGBT Coloradans is designed to protect General Counsel, Scott Hoye, identified by his co-defendant, Tim Hansen, as the actual discriminatory decision-maker in this case. According to Mr. Hansen, former Interim Chief Human Resources Officer at Denver Health, Mr. Hoye directed him to prepare the Termination Notice citing “two HIPPA [sic] violations in a six month period” and carry out his [Mr. Hoye’s] termination decision, given that he [Mr. Hoye] functioned outside the HR department’s chain of command. Notably, as Denver Health’s General Counsel, Mr. Hoye also controls the flow of information to Denver Health’s Board of Directors and the course of this litigation.

Please stay tuned for further updates. Again, because the employment rights of thousands of LGBT Coloradans employed by Denver Health and other public entities hang in the balance, we consider it our duty to provide legal updates about matters in the public record.

Merrily Archer, Esq., M.S.W.

 

Defensive Management: Getting the Message to Managers (Where It Matters Most)

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As a longtime regular on the HR speaker’s circuit, I have often had this nagging suspicion that I’m just preaching to the choir about EEO compliance.  Of course, today’s HR professionals need to know about the latest scary lawsuits, legislation, regulation, and EEOC enforcement guidance.  But increasingly over these past 15 years, as I would look out into audiences of HR professionals, I would catch myself thinking,

These HR folks get it.  Better yet, they’re striving to fulfill the promise of EEO on the ground, where it matters most.  You’re preaching to the choir!  Is this really who the EEOC is “fighting?”

When it comes to EEO, HR professionals more closely resemble acolytes, rather than adversaries.  Even so, discrimination litigation virtually always plays out like old spaghetti Westerns or silent movies, replete with hapless victims (played by the Employee), evil villains (played by Managers), and inept or corrupt sheriffs who refused to enforce “the law” (played by HR professionals).

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In this victim/villain view of workplace discrimination disputes, regular line managers play leading roles in creating liability for the overall organization and/or for themselves individually, often carrying out their villainous deeds beyond the reach or with the cooperation of the sheriff (i.e., HR).  After all, in organizations with centralized HR and decentralized operations, HR simply cannot police every potentially problematic personnel interaction or monitor every manager.  In most discrimination lawsuits, the “bad stuff” of EEOC’s charges and employee lawsuits really does happen BEFORE the sheriff (i.e., HR) can restore law and order.

And so, with all this preaching-to-the-choir, I began to wonder whether (and how) the EEO compliance message reached these potential villains in the workplace trenches.  When handing managers the keys to the executive restrooms, do we tell them that their acts and omissions vis-à-vis subordinates could result in corporate and individual liability? Do we explain HR’s essential risk management role—namely, to spare managers the dehumanizing, expensive, and soul-crushing experience of playing “the villain” in employment litigation?  Do we help them spot employee issues that require automatic escalation to HR? After all, line managers are HR’s “eyes” and “ears.”  Have we co-opted line managers into the overall compliance process, actively enlisting their support to reduce organizational risk?  Have we explained HR’s and in-house counsel’s obsession with documentation and processes in an accessible way that makes sense?  Have we made “the law” simple enough to follow during the press of everyday business?

When delivering “Defensive Management” to HR professionals and in-house employment counsel, their sheepish grins actually answer those questions.  Most organizations report a disconnection between in-house counsel, HR and managers, as though each were operating in silos without a shared sense of endgame.  This disconnect may also help explain why, despite record workplace regulation and employee litigation, the EEOC continues to take in nearly 100,000 new charges each year while progress toward leveling racial and gender disparities in unemployment, advancement, and wealth distribution has stalled. Learn more here.  Our litigation-based methods to reduce discrimination charges and promote equal opportunity have not proven particularly effective.  And one potential “fix,” among many others, will involve renewed focus on fully educating managers about organizational commitment to EEO and their important role in advancing it, as well as in reducing the risk of EEO disputes.