Denver Health LGBT Discrimination Case Referred to Colorado Supreme Court

“This matter is one of substantial public importance,” writes the Colorado Court of Appeals. 

Last week, the Colorado Court of Appeals referred Houchin v. Denver Health and Hospital Authority and Tim Hansen to the Colorado Supreme Court. A referral to the Colorado Supreme Court is rare, but can happen if (1) the ultimate decision involves a prior Supreme Court ruling (only the Supreme Court can overrule itself) and (2) the case involves an issue of “substantial public importance.” We are deeply gratified and relieved that the Court of Appeals appreciates the broader impact of this case. You can read the Court of Appeals referral HERE.

Here, Denver Health argues that because of 2015 changes to the Colorado Anti-discrimination Act (CADA) designed to provide equal remedies to LGBT employees, CADA no longer applies to its workforce. These 2015 amendments, Denver Health argues, transformed CADA into a tort (i.e. personal injury) for which it enjoys absolute governmental immunity under the Colorado Governmental Immunity Act (CGIA). Never mind, Denver Health says, that in adopting these changes, the Colorado legislature expressly waived CGIA immunity for governmental entities, thereby subjecting public entities to discrimination and harassment lawsuits under the CADA. According to Denver Health’s General Counsel, Scott Hoye, however, this express waiver does not apply to Denver Health either and since January 1, 2015, he has considered Denver Health absolutely immune from CADA lawsuits. Because only CADA protects LGBT employees from workplace discrimination and harassment (whereas race, gender, national origin, religion, age, disability are protected under federal law), Denver Health’s LGBT employees have effectively worked without legal protections since January 1, 2015.

If Denver Health is right (and we firmly believe that Denver Health is WRONG), then the LGBT employees working at every statutorily created Colorado public entity enjoy NO protection or remedy under the CADA for unlawful workplace discrimination, harassment, and retaliation based on who they are and whom they love. What ARE other statutorily created public entities, you ask?

  • County governments;
  • Local governments like municipalities;
  • School districts;
  • Any “special district” for
    • Water
    • Sanitation
    • Parks and Recreation
    • Culture and Science like the SCFD;
    • Health Care
    • Fire Protection

In effect, according to Denver Health, the General Assembly only intended to protect a narrow swath of LGBT employees technically employed by the State of Colorado, as opposed to all publicly-employed Coloradans working for its various subdivisions. This interpretation, we submit, would undermine one of the central purposes of the 2015 amendments: to provide LGBT employees throughout Colorado the same rights and remedies against workplace discrimination, harassment, and retaliation that other protected categories of employees (e.g. race, gender, national origin, religion, age, disability) enjoy under federal law.

Perceptions of absolute immunity foment unlawful conduct. After all, if the General Counsel believes that Denver Health is absolutely immune from CADA lawsuits, what steps would Denver Health’s top leadership take to ensure compliance with anti-discrimination laws in their decision-making processes?

On September 7, 2016, Denver Health summarily fired its Employee Relations Manager, Brent Houchin, without warning, ending years of distinguished service based on his annual performance evaluations. What happened to Brent is every LGBT employee’s worst [workplace] nightmare: you love your job, your direct supervisor, your mission, your duties, and your team. And then, a new boss who makes his dislike of LGBT people known enters the picture, and less than eight weeks later, you’re summarily and unceremoniously canned (without your direct supervisor’s knowledge and consent, while she was on vacation) for trumped up “violations” that are not violations at all. No doubt, in firing him, Denver Health circumvented its own published workplace policies regarding progressive discipline, patient privacy (HIPAA) violations, employee rehabilitation, and worse, the prevention, investigation, and remediation of employee drug diversion.

Indeed, Denver Health ostensibly fired Brent for recommending “investigative leave” in two suspected (and later substantiated) cases of employee drug diversion, a recommendation that strictly followed Denver Health’s own legally mandated Drug and Alcohol-Free Workplace Policy. This recommendation, says Denver Health, violated the employee’s patient privacy rights, a justification that conflicts directly with Drug Enforcement Agency (DEA) regulations, federal grant requirements, and its own policies. Likely for these reasons, Denver Health has never defended against our discrimination, retaliation, and whistle-blowing allegations on the merits; rather, Denver Health has instead claimed that the laws we seek to enforce do not apply to its operations given its status as an “exotic legal animal.” Notably, Denver Health also argues that laws protecting whistle-blowers do not apply to its operations either.

We should know soon whether the Colorado Supreme Court will agree to decide this important issue, which affects thousands of LGBT employees throughout Colorado. We will keep you posted, and we hope that you will share this information within the LGBT advocacy community. Denver Health has long enjoyed a reputation for being LGBT-friendly based on the services that several of its PROVIDERS have offered to LGBT patients. This work is important and no doubt, we’re grateful for Denver Health’s work with LGBT patients.

But like every human-powered organization, Denver Health IS its employees. Denver Health could not operate without the dedicated and talented humans who come to work every day. Many LGBT employees choose to work at Denver Health because of its LGBT-friendly reputation. Unfortunately, unless and until the Colorado Supreme Court and/or the Colorado Court of Appeal’s dispenses with Denver Health’s claim of an exalted legal status immune from CADA lawsuits, LGBT employees working at Denver Health today enjoy no legal or practical protection against workplace discrimination, harassment, and retaliation because of who they are and whom they love.

We (including and especially many decent people at Denver Health) deserve better. We can do better and so, we must. Join us.

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

 

 

How Our Anti-Harassment Enforcement Machine Churns Out “High Value Harassers”

Time Magazine just named the “Silence Breakers,” harbingers of the #MeToo movement, as its 2017 Persons of the Year.  According to Time, the #MeToo movement marks a watershed moment in American labor history that will end workplace sexual harassment once and for all. Because of the #MeToo movement, TV pundits have speculated, women now feel empowered to speak up about harassment and as a consequence, companies will immediately clamp down on “High Value Harassers” like Harvey Weinstein, Matt Lauer, Charlie Rose, Roy Moore, Al Franken, Glen Thrush, Louis CK, Jeffrey Tambor, Kevin Spacey, Bill O’Reilly, Donald Trump . . . and . . .

Um, not exactly. My cynicism comes not just from a jaundiced view of the Nature of Man, but also from experience: three years as an EEOC prosecutor (1997-2000) and 17 years representing EMPLOYERS (e.g. big ones, small ones and in between). As a civil rights geek, I’ve also researched and written extensively about whether our model for enforcing anti-discrimination and anti-harassment laws–namely, the Civil Rights Act of 1991–has WORKED to deliver on Title VII’s promise of equal employment opportunity (EEO) for all, HERE.

And the truth is, our model for preventing and addressing workplace sexual harassment has become a silly Sylvester McMonkey McBean Machine in which nothing much changes except money changing hands . . . between employers, insurance carriers, and lawyers.

In the classic Dr. Seuss tale “Sneetches,” Sylvester McMonkey McBean built a special machine to resolve tensions between Sneetches who had bellies with stars, and Sneetches who had none upon thars. McBean’s machine could apply AND remove stars . . . for a handsome fee. Eventually, after every last cent of their money was spent, the Sneetches figured out that they’d been tricked: the machine really did nothing at all.

Our anti-harassment enforcement machine is just another contraption in which nothing much changes except money changing hands.


In our Sylvester McMonkey McBean Sexual Harassment contraption, allegations of sexual harassment go into the machine, which spits out M-O-N-E-Y, confidentiality and non-disclosure agreements (NDA’s), and “divorces” that end the employment relationship forever. And each time a victim of workplace harassment gets run through the machine, the harasser grows bigger, stronger, and bolder in his serial harassment of women. He knows that he is a “High Value Harasser,” the subject of a carefully contemplated cost-benefit calculation that prompts companies to set aside financial reserves and buy more expensive Employment Practices Liability (EPL) insurance to mitigate the KNOWN RISK. For organizations protecting High Value Harassers, the decision is purely economic: the worth of the High Value Harasser exceeds the cost of paying out sexual harassment claims.

Yep That’s Harassment Indeed!” tells the story of the “High Value Harasser” in musical form–stay tuned for the video! In this song, the listener initially wonders whether the creep realizes that he’s a creepy harasser; the last verse, however, explains his thinking:

Now, I make them good money
So I’ll get my honey
Whenever and wherever I please

Just write me up
Like legal makeup
The lawyers we need to appease

We’ll write a check
Who gives a heck?
We set aside cash for these fees

When money matters
The owners would rather
Pay off silly claims like these

Because of this reality, High Value Harassers have preyed upon women in the workplace for generations. After all, sexual harassment has been illegal since 1986, when the U.S. Supreme Court decided Meritor Savings Bank v. Vinson, the first case to find that sexual harassment violated Title VII. Since 1986, an entire industry of anti-harassment training emerged, making annual anti-harassment training the industry standard for claim prevention. But training has not prevented High Value Harassers from pursuing women at work, nor has it reduced EEOC claims alleging sexual harassment. Given the sheer volume of #MeToo reports over the past 30 years, reasonable minds would likely agree that what we’re doing to prevent and address workplace harassment is NOT WORKING. Millions over dollars in settlement of sexual harassment claims have changed hands, but the harassment has not stopped . . . or even changed.

I know why, after looking at this issue from BOTH sides (e.g. as an EEOC prosecutor and longtime employment defense lawyer) for over 20 years. And here’s how I would tweak our Sylvester McMonkey McBean Sexual Harassment Machine:

I.  Exclude “Sexual Harassment” from Employment Practices Liability (EPL) Coverage

When Congress passed the Civil Rights Act of 1991 in November 1991 (i.e. after the contentious Clarence Thomas-Anita Hill hearings), the insurance industry recognized an opportunity; after all, where there is RISK, they purport to offer a REMEDY, right? Thus, with CRA 1991’s introduction of jury trials, punitive and compensatory damages, and attorneys’ fees as enforcement tools, more and more insurance carriers started offering Employment Practices Liability coverage  to mitigate the costs (attorneys’ fees) and risks (judgments, settlements) of discrimination and harassment claims. Twenty-five years after CRA 1991, most employers (over 80%) now have some kind of EPL insurance to cover attorneys’ fees and settlements related to sexual harassment claims. By design, EPL insurance took the sting out of the stick of CRA 1991’s enhanced remedies.

Sexual harassment, however, is an INTENTIONAL and DELIBERATE act, unlike the other kinds of hazards and “accidents” for which employers purchase liability insurance (e.g. premises liability, workers’ compensation, malpractice). Indeed, the whole theory behind business liability insurance is that despite our best efforts, accidents happen even when we are not behaving negligently: people slip, things break, employees get hurt. But sexual harassment is quite different: sexual harassment is a deliberate effort to demean women and define them sexually as a “piece of meat” instead of as a peer or typically, as an intellectual superior. Men’s choice to view women in sexual terms is designed to humiliate, to reinforce that no matter how smart, talented, hard-working and worthy they are, the existing male-dominated power structure will NEVER take them seriously. I felt that way each time the Regional Attorney of the EEOC’s Denver Office told me that, despite my JD/MSW degrees as a civil rights fellow at Washington University in St. Louis, he’d hired me because of my “pretty blue eyes” and/or because “I was easy on the eyes.”

Insurance is simply not available for other INTENTIONAL and DELIBERATE acts or torts like assault, battery, murder, false imprisonment, etc. Can you imagine trying to buy insurance in case you decide to beat up or murder your neighbor? No doubt, if such insurance existed, insurance carriers would sell it and people (especially in the South) would buy it. Such policies do not exist, however, because they offend our public policy favoring the imposition of penalties for intentional or reckless violent behavior. Congress could, through legislation, effectively nullify all EPL coverage for employee sexual harassment claims as against public policy, which would FORCE employers to take active measures to prevent, respond to, and immediately correct workplace harassment. Sexual harassment is PREVENTABLE, but only in organizations that take it seriously through annual training, a strong reporting infrastructure, prompt quality investigations, and punishment for substantiated harassment.

II.  Dethrone “High Value Harassers”

Organizations construct entire systems to protect their High Value Harassers. In large self-insured organizations, the C-Suite has already set aside substantial reserves to pay out sexual harassment claims anticipated from a KNOWN RISK like Bill O’Reilly, Bill Cosby, Harvey Weinstein . . . in the cases of celebrity serial harassers like Charlie Rose, Kevin Spacey, Louis CK and others, their personal harassment risk factors into their contract negotiations. Thus, when the sexual harassment and assault complaints inevitably come, they get processed through the Sylvester McMonkey McBean Sexual Harassment Machine with little, if any, impact on the bottom line: reserved funds get paid out, confidentiality agreements get signed, and the serial harasser gets back to the business of harassing . . . with impunity.

Employers, especially public and publicly-traded ones, can no longer afford High Value Harassers. As recent events illustrate, High Value Harassers cost organizations more than money: they squander immeasurable amounts in public goodwill, credibility, productivity and talent that leaves for greener, non-groping pastures.

III.  Recognize the Psychodynamics of Harassment

Sexual harassment has become the business of lawyers. Over the past 25 years, however, lawyers have not proven terribly effective at leveling the playing field and/or at eradicating sexual harassment from our workplaces. Legal tools do not always fix social problems, as we have seen with drug addiction, domestic violence, inequitable opportunity, etc. Thus, we MUST invite other experts to the discussion, including social and industrial psychologists, HR executives, andragogy (adult learning) professionals, artists, poets, shamans, etc. These other experts would reveal a universal truth about sexual harassment, a conclusion they all reached from different paths:

Harassers never perceive their own conduct as harassing.

And never means never. Because of cognitive dissonance (a psychological phenomenon afflicting us all), “Harassers” cannot imagine the possibility that (1) their attention or affection is unwelcome and/or (2) their audience could hear or experience a different message than they intended. Over 20 years, I’ve heard just about everything:

  • I was just kidding! Don’t be so sensitive!
  • I was complimenting her when I said she had a great ass!
  • I did not harass her; I just said I wanted to have sex with her.
  • It’s just locker room talk or horseplay!
  • When you’re a star, they let you do anything.
  • I thought she’d be flattered–I don’t invite just anyone to my room to watch me jerk off.

Effective training on sexual harassment challenges potential harassers to consider the possible disconnect between their intended message and the “heard” message; to understand the power dynamics that color every interaction with a subordinate; to embrace the reality that MOST women find sexual overtures really off-putting and demeaning at work; to accept that sexual harassment can jeopardize their careers and credibility just about more than anything else, etc. Effective sexual harassment training, therefore, draws on other tools borrowed from other disciplines like psychology, social psychology, management, and even law enforcement.

At this stage of our journey toward equal opportunity and harassment-free workplaces, we MUST evaluate and modify our methods, methods that have not proven terribly effective over the past 25 years. Otherwise, we will perpetuate a Sylvester McMonkey McBean Sexual Harassment Machine in which a substantial amount of money changes hands between employers, insurance carriers, and lawyers, but nothing else changes for the women in our workplaces. We need to deconstruct a sham machine that has tricked us into believing that it is “doing something” other than collecting and spitting out money, while enriching the insurance, HR, and legal industries.