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

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.