PRIDE UPDATE: Denver Health LGBT Discrimination Litigation

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The Denver Health LGBT litigation gathers momentum, with several key developments over the past eight weeks

The Status: Waiting to See if the Colorado Supreme Court Will Review

On April 4, 2019 (coincidentally, the 51st anniversary of Dr. Martin Luther King’s assassination), the Colorado Court of Appeals dealt another blow to the advancement of civil rights with the publication of its opinion in Houchin v. Denver Health, linked HERE. In a 2-1 split decision, the majority held that public entities like municipalities, county governments, and “special districts” (e.g. for school, fire, police, water, sanitation, parks/recreation, cultural events and facilities, health care . . .) enjoy complete governmental immunity from compensatory damages in litigation under the Colorado Anti-Discrimination Act (CADA). Unfortunately, LGBT workers only enjoy protection from discrimination under CADA. As a result, LGBT public servants working for one of these numerous spun-off special districts have only very limited rights and remedies when, as occurred in Houchin v. Denver Health, their employers intentionally and blatantly discriminate against them. For an interesting discussion about how state governments have systematically spun-off traditional state functions into “special districts,” check out John Oliver’s brilliant piece HERE.  

In any case, under the Court of Appeal’s unequal scheme, LGBT employees working for the State of Colorado or a private Colorado employer can recover CADA’s full panoply of remedies, which our legislature enhanced in 2013 to provide greater relief to LGBT employees suffering workplace discrimination. That kind of irrational differentiation, we argued, violates the Equal Protection clauses of the United States and Colorado Constitutions, provisions designed to guarantee equal treatment under the law of similarly situated people.

Much to our surprise, on May 13, 2019, Denver Health appealed the Court of Appeals order to the Colorado Supreme Court. Read Denver Health’s brief HERE. Denver Health’s grouse? The Court of Appeals did not buy its argument that governmental immunity completely bars employees from suing under CADA . . . Denver Health argued that effective January 1, 2015, its workforce no longer enjoys CADA’s protections. Unfortunately, only CADA protects LGBT employees, given that Title VII does not YET cover LGBT status. Worse, Denver Health provided no notice to its employees of this fundamental change in their workplace rights, even though General Counsel Scott Hoye agreed that the absence of anti-discrimination protections would be “relevant” to “some” of them.

Nevertheless, the Court of Appeals order would permit Houchin to litigate his LGBT discrimination allegations in Denver District Court and obtain the “equitable” relief of backpay, frontpay, and attorneys’ fees. And that’s the LAST thing Denver Health wants. After all, General Counsel Scott Hoye, who controls the flow of information to Denver Health’s Board of Directors and the payment of legal fees, participated in the discriminatory decision to fire Houchin abruptly; in fact, his co-defendant has even fingered him as the “actual” discriminatory decision-maker.  Thus, Denver Health’s legal claim of absolute legal immunity is ultimately designed to cover up General Counsel Scott Hoye’s wrongdoing. 

On May 27, 2019, we cross-petitioned for Supreme Court review on three grounds. The Court of Appeals order: (1) overlooked the fundamental anti-discrimination mandate in Supreme Court precedent, namely the 2000 Conners decision that exposed all public entities to CADA discrimination claims; (2) betrayed the legislature’s intent when amending CADA in 2013 to stamp out discrimination in public and private employment throughout Colorado; and (3) violates the equal protection clauses of both the U.S. and Colorado Constitutions.  Then, on June 4, 2019, the Plaintiff Employment Lawyers Association (PELA) and the Colorado LGBT Bar Association filed a brief in support of our cross petition as amicus curiae.  We are so grateful for PELA’s and the LGBT bar’s on-going advocacy on behalf of Colorado’s employees. 

The Stakes: The Rights of LGBT Public Servants Hang in the Balance

Two outcomes are possible: either the Colorado Supreme Court decides to review the Court of Appeals decision or it decides to let it stand. Indeed, the Colorado Supreme Court reviews very few cases–I’ve read varying statistics ranging from an 8% to 11% re how often the Colorado Supreme Court grants review. And so, it’s a long-shot. 

If the Colorado Supreme Court grants review, then it will issue a DECISIVE opinion that will frame the rights of Colorado’s LGBT workforce for years to come, absent legislative override. If the Colorado Supreme Court does NOT exercise its jurisdiction to review this case, then the Court of Appeals decision effectively divests every LGBT public servant working for a municipality, county government, or “special district” of the remedies that the legislature intended when modifying CADA in 2013. LGBT employees will continue to experience disparate treatment based solely on where they work, an outcome even the Court of Appeals called “anomalous.” Worse, these LGBT public servants working for municipalities, county governments, and special districts represent the BEST among us–our firefighters, law enforcement officers, paramedics, public health nurses, teachers, sanitation workers, coaches at recreational districts . . . namely, the good people who SERVE our community. 

While everyone celebrates Pride, this monumental legal dispute affecting the rights of thousands of Colorado LGBT public servants simmers under the surface. Indeed, Denver Health has long promoted itself in the LGBT community as particularly LGBT-friendly and will likely assert a strong presence at this year’s Pride festivities. In court, however, Denver Health claims that its LGBT employees enjoy no protection from workplace discrimination, harassment, and retaliation. In effect, therefore, Denver Health has systematically mislead the LGBT community to lure people onto its payroll where, General Counsel Scott Hoye asserts, LGBT workers have no protection against intentional, overt discrimination. In fact, Denver Health is leading the charge to ensure that public entities like municipalities, county governments, and special districts can continue to discriminate against LGBT workers without fear of employee legal claims. 

If you think that’s as wrong as we do, then share this post and spread awareness. Because of the support of PELA, the  LGBT bar association, and the ACLU, we’re optimistic that the Colorado Supreme Court will review this matter. We’ll keep you posted.

With pride and faith, Merrily

Merrily Archer, Esq., M.S.W. 

June 7, 2019

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.