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.

 

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.