Published: 03/17/2008
In May 2007, Colorado Governor Bill Ritter signed Senate Bill 25 into law, which bans discrimination based on sexual orientation, gender identity, and religion. The new legislation revised the Colorado Anti-Discrimination Act ("CADA"), which already prohibited discrimination based on disability, race, creed, color, sex, and national origin. This landmark legislation makes Colorado the twentieth state to prohibit discrimination based on sexual orientation and the twelfth state to prohibit discrimination based on gender identity.
New CADA Provisions
The new CADA provisions make it illegal to "refuse to hire" or "to discharge, promote or demote, harass during the course of employment, or discriminate in matters of compensation against any otherwise qualified person" because of that person's sexual orientation or religion. The legislation broadly defines "sexual orientation" as "a person's orientation toward heterosexuality, homosexuality, bisexuality, or transgendered status or an employer's perception thereof." The new CADA provisions do not define "religion," which was also added to the list of protected classifications. Prior to the amendments, CADA listed "creed" as a protected class. This was generally understood to include prohibitions against discrimination based on an individual's religion.
Broad Coverage
With only a few exceptions, all Colorado employers are subject to the new CADA provisions. Unlike some federal anti-discrimination laws that only apply to employers employing a certain number of employees, CADA defines "employer" broadly and includes even those with a single employee.
Religious Exemption
CADA does exempt certain "religious organizations" from its prohibitions so long as they are not supported in whole or in part with money raised by taxation or public borrowing. If a religious organization receives public funds or public borrowing, it is subject to all of CADA's provisions except the prohibition on religious discrimination. Even if religious organizations accept public funds or borrowing, and therefore are subject to CADA, they may make hiring decisions based on religion. The new amendments to CADA specifically preserve the right for religious organization employers to employ individuals of a particular religion to perform work connected with that organization's activities. This provision leaves many unanswered questions. 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? What constitutes a religious organization or employer? CADA does not exempt religious organization employers who accept public funds or borrowing from the prohibition against discriminating on the basis of sex or sexual orientation.
Practical Significance
Those religious employers who are not receiving public funds or public borrowing need not change their hiring practices. Those organizations that are funded by public borrowing or public funds should consult legal counsel for a complete analysis of the effects of the new legislation on their organization.
For more information, please contact RJ&L partner, S. Kato Crews at 719-386-3017 or kcrews@rothgerber.com.