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.

 

 

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.