Colorado Adds "Sexual Orientation" and "Religion" to the List of Protected Classifications
Author(s): Joy Allen Woller
Published: 09/01/2007
Landmark legislation signed into law by Colorado Governor Bill Ritter makes Colorado only the 20th state to prohibit discrimination based on sexual orientation, and only the 12th state to prohibit discrimination based on gender identity. The Colorado Anti-Discrimination Act ("CADA") already prohibited employers from discriminating against employees based on disability, race, creed, color, sex, age, national origin, or ancestry. However, as of August 3, 2007, Colorado employers are prohibited from discriminating against employees based on their sexual orientation, which includes gender identity. Additionally, "religion" was added to the list of protected classifications under CADA.
All businesses subject to new CADA provisions
The amended CADA defines sexual orientation as "a person’s orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or an employer’s perception thereof." As a result, a person’s gender identity, i.e., the gender with which a person identifies, is also now a protected classification under CADA. While CADA defines "sexual orientation," it does not define "religion," which was also added to the list. Prior to CADA’s addition of "religion" as a protected classification, its listing of "creed" was generally understood to include prohibitions against discrimination based on an individual’s religion.
All Colorado employers are potentially subject to these new provisions. Unlike some federal anti-discrimination laws that only apply to employers employing a certain number of employees, CADA defines "employer" extremely broadly. The state of Colorado, its subdivisions, and every other person employing persons within the state are all subject to CADA. This means that some Colorado small businesses may be exempt from federal anti-discrimination laws, but subject to CADA.
Religious exemptions and the challenge of enforcement
CADA does, however, exempt certain "religious organizations" from its prohibitions. But religious organizations that are supported in whole or in part with money raised by taxation or public borrowing are considered "employers" within the meaning of CADA. Because no published Colorado court opinion has specifically interpreted CADA’s religious organization exemption, it is unclear what types of public borrowing or public money may subject a religious organization to CADA.
Even if a religious organization is subject to CADA based on its receipt of public funds, however, it may still make certain employment decisions based on religion. The new amendments to CADA specifically allow religious corporations, associations, educational institutions, or societies to employ individuals of a particular religion to perform work connected with that organization’s activities. This provision does leave many unanswered questions, such as what kind of work is considered to be "connected with" a religious organization’s activities such that the organization may make hiring decisions based on religion? It is also unclear whether a religious organization may cite religious grounds as a basis for not hiring a person based on his or her sexual orientation. It remains to be seen how Colorado courts will interpret these new provisions.
Practical Significance
Colorado employers of all sizes will be impacted by these recent amendments to CADA. Employers should revise the anti-discrimination and harassment provisions of their employee handbooks to reflect these changes in the law. Employers should also consider training supervisors and management personnel specifically, and employees generally, in understanding and identifying discrimination based on sexual orientation, gender identity, and religion.
Joy Allen Woller is an associate attorney practicing in RJ&L’s Denver office. Her practice focuses on commercial and complex civil litigation involving business entities of various sizes. Ms. Woller’s experience includes litigation in a wide range of substantive areas, including employment litigation, contractual disputes, matters involving religious institutions, and intellectual property issues. Ms. Woller is a 2004 graduate of Syracuse University School of Law, where she graduated magna cum laude. She can be reached at 303-628-9504 or by e-mail at jwoller@rothgerber.com.