(1) This section shall be known
and may be cited as the Job Protection and Civil Rights Enforcement Act of 2013.
(2) (a) In addition to the relief authorized by section 24-34-306 (9), the
commission or the court may order affirmative relief that the commission or court
determines to be appropriate, including the following relief, against a respondent
who is found to have engaged in an unfair or discriminatory employment practice:
(I) Reinstatement or hiring of employees, with or without back pay. If the
commission or court orders back pay, the employer, employment agency, or labor
organization responsible for the discriminatory or unfair employment practice shall
pay the back pay to the person who was the victim of the practice.
(II) Front pay; or
(III) Any other equitable relief the commission or court deems appropriate.
(b) If the commission or court orders back pay, the liability for back pay
accrues from a date not more than two years prior to the filing of a charge with the
division. The commission or court shall reduce an award of back pay by any amount
of actual earnings of, or amounts that could have been earned with reasonable
diligence by, the person who was the victim of the discriminatory or unfair
employment practice.
(3) (a) In addition to the relief available pursuant to subsection (2) of this
section, in a civil action brought by a plaintiff under this part 4 against a defendant
who is found to have engaged in an intentional discriminatory or unfair employment
practice, the plaintiff may recover compensatory and punitive damages as specified
in this subsection (3). The court shall not award a plaintiff compensatory or punitive
damages when the defendant is found to have engaged in an employment practice
that is unlawful solely because of its disparate impact.
(b) (I) Except as limited by the Colorado Governmental Immunity Act,
article 10 of this title, and except as provided in subparagraph (II) of this paragraph
(b), a plaintiff may recover punitive damages against a defendant, other than the
state or any political subdivision, commission, department, institution, or school
district of the state, if the plaintiff demonstrates by clear and convincing evidence
that the defendant engaged in a discriminatory or unfair employment practice with
malice or reckless indifference to the rights of the plaintiff. However, if the
defendant demonstrates good-faith efforts to comply with this part 4 and to
prevent discriminatory and unfair employment practices in the workplace, the court
shall not award punitive damages against the defendant.
(II) The court shall not award punitive damages in a civil action involving a
claim of failure to make a reasonable accommodation for a person with a disability
if the defendant demonstrates good-faith efforts to identify and make a reasonable
accommodation that would provide the person with a disability an equally effective
opportunity and would not cause an undue hardship on the operation of the
defendant's business.
(c) A plaintiff may recover compensatory damages against a defendant for
other pecuniary losses, emotional pain and suffering, inconvenience, mental
anguish, loss of enjoyment of life, and other nonpecuniary losses.
(d) (I) Except as provided in subparagraph (II) of this paragraph (d), the total
amount of compensatory and punitive damages awarded pursuant to this
subsection (3) shall not exceed the amounts specified in 42 U.S.C. sec. 1981a (b)(3).
(II) For employers who employ fewer than fifteen employees, the total
amount of compensatory and punitive damages awarded pursuant to this
subsection (3) shall not exceed the following amounts:
(A) If the defendant has one or more employees but fewer than five
employees in each of twenty or more calendar weeks in either the current or
preceding calendar year, ten thousand dollars; or
(B) If the defendant has five or more employees but fourteen or fewer
employees in each of twenty or more calendar weeks in either the current or
preceding calendar year, twenty-five thousand dollars.
(III) In determining the appropriate level of damages to award a plaintiff who
has been the victim of an intentional discriminatory or unfair employment practice,
the court shall consider the size and assets of the defendant and the egregiousness
of the intentional discriminatory or unfair employment practice.
(IV) If a plaintiff asserts claims of intentional discriminatory or unfair
employment practices under this article and under applicable federal anti-discrimination laws, the plaintiff may recover relief under this section only once for
the same injuries, damages, or losses.
(e) Compensatory or punitive damages awarded pursuant to this subsection
(3) are in addition to, and do not include, front pay, back pay, interest on back pay,
or any other type of relief awarded pursuant to subsection (2) of this section.
(f) The remedies specified in this subsection (3) apply to causes of action
alleging discriminatory or unfair employment practices accruing on or after January
1, 2015.
(g) Repealed.
(4) If a plaintiff in a civil action filed under this part 4 seeks compensatory or
punitive damages pursuant to subsection (3) of this section, any party to the civil
action may demand a trial by jury.
(5) In any civil action under this part 4, the court may award reasonable
attorney fees and costs to the prevailing plaintiff. If the court finds that an action or
defense brought pursuant to this part 4 was frivolous, groundless, or vexatious as
provided in article 17 of title 13, C.R.S., the court may award costs and attorney fees
to the defendant in the action.
(6) Except when federal law is silent on the issue, this section shall be
construed, interpreted, and applied in a manner that is consistent with standards
established through judicial interpretation of Title VII of the federal Civil Rights
Act of 1964, as amended, 42 U.S.C. sec. 2000e et seq.; the federal Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. sec. 621 et seq.;
titles I and V of the federal Americans with Disabilities Act of 1990, as amended,
42 U.S.C. sec. 12111 et seq.; and the federal Civil Rights Act of 1991, 42 U.S.C. sec.
1981a.
(7) Nothing in this section precludes a party from asserting any other
available statutory or common law claims.
(8) (a) As used in this subsection (8), aggrieved party means a person who
has filed a complaint alleging an intentional discriminatory or unfair employment
practice, including an applicant for a position in the state personnel system or an
employee in the state personnel system.
(b) The commission, a commissioner, an administrative law judge appointed
pursuant to part 10 of article 30 of this title, or, in cases involving applicants for
positions in or employees in the state personnel system, the state personnel board
established pursuant to section 14 of article XII of the state constitution shall not
award damages to an aggrieved party alleging an intentional discriminatory or
unfair employment practice. An aggrieved party who is seeking damages as
authorized in subsection (3) of this section must file a civil action in a court of
competent jurisdiction to recover those damages; except that punitive damages are
not recoverable against the state or any political subdivision, commission,
department, institution, or school district of the state.
(c) (I) Upon issuance of an order by the commission pursuant to section 24-34-306 (9) and subsection (2) of this section or of a written decision by the state
personnel board pursuant to section 24-50-125.4 in which the commission or state
personnel board makes a finding of an intentional discriminatory or unfair
employment practice, an aggrieved party may file a civil action in a district court in
this state seeking damages as authorized in subsection (3) of this section.
(II) For complaints filed with the commission, the aggrieved party must file
the action for damages within thirty days after the date the commission mails
notice of the order issued pursuant to section 24-34-306 (9) and subsection (2) of
this section. If the aggrieved party fails to file an action for damages within thirty
days after the date the notice of the order is mailed, the action is barred, no district
court has jurisdiction to hear the action, and the commission's order becomes final
and is subject to judicial review pursuant to section 24-34-307.
(III) (A) For complaints filed with the state personnel board, if an
administrative law judge issues the initial written decision on behalf of the state
personnel board, the aggrieved party may not file a civil action until after the
expiration of the thirty-day period specified in section 24-50-125.4 (4) for filing an
appeal. If a party does not file an appeal of the administrative law judge's initial
decision with the state personnel board in accordance with section 24-50-125.4 (4),
the aggrieved party must file the civil action for compensatory damages within
thirty days after the expiration of the appeal period specified in section 24-50-125.4 (4). If a party files an appeal with the state personnel board in accordance
with section 24-50-125.4 (4), the aggrieved party must file the civil action for
compensatory damages within thirty days after the date the state personnel board
transmits the notice of its decision on the appeal in accordance with section 24-50-125.4 (6).
(B) If the aggrieved party fails to file an action for compensatory damages
within thirty days after the appeal period expires or the date the state personnel
board's notice of decision is transmitted, whichever is applicable pursuant to sub-subparagraph (A) of this subparagraph (III), the action for compensatory damages is
barred, no district court has jurisdiction to hear the action, and the state personnel
board's decision becomes final and is subject to judicial review pursuant to sections
24-50-125.4 (3) and 24-4-106 (11).
(d) (I) If the aggrieved party initially filed a complaint with the commission,
the aggrieved party and the district court shall serve a copy of the civil action
complaint on the commission, and upon receipt of the civil action complaint, the
commission's order is automatically stayed pending the outcome of the civil action,
in which case the commission's decision is not a final order subject to judicial review
pursuant to section 24-34-307 until the district court issues a final judgment in the
civil action for damages.
(II) If the aggrieved party is an applicant for a position in or an employee in
the state personnel system, the aggrieved party and the district court shall serve a
copy of the civil action complaint on the state personnel board, and upon receipt of
the complaint, the state personnel board's decision is automatically stayed pending
the outcome of the civil action, in which case the state personnel board's decision is
not a final order subject to judicial review pursuant to sections 24-50-125.4 (3) and
24-4-106 (11) until the district court issues a final judgment in the civil action for
compensatory damages.
(e) (I) In a civil action brought pursuant to this subsection (8) for damages
after the commission or state personnel board makes a finding of an intentional
discriminatory or unfair employment practice, the district court shall consider the
issue of whether the aggrieved party is entitled to damages and the amount of
damages, if awarded.
(II) The district court may award attorney fees and costs in connection with
the action for damages consistent with subsection (5) of this section.
(III) The district court shall expedite the action for damages and set the
matter for trial at the earliest practical time.
(f) Upon entering a final judgment in a civil action brought pursuant to this
subsection (8), the district court shall serve notice of the judgment on the parties
and the commission or state personnel board, as appropriate. Once the commission
or state personnel board receives a final judgment from the district court, the
commission or state personnel board shall incorporate the district court judgment
in its order or decision, which becomes a final order subject to judicial review in
accordance with section 24-34-307 or sections 24-50-125.4 (3) and 24-4-106 (11),
as applicable.
(g) A claim filed pursuant to this subsection (8) by an aggrieved party
against the state for compensatory damages for an intentional unfair or
discriminatory employment practice is not subject to the Colorado Governmental
Immunity Act, article 10 of this title.