When a Colorado Senate committee considers a bill next week to expand the ability of people with disabilities to recover damages in lawsuits, it will debate a proposal that’s changed repeatedly over the past few months for the benefit of businesses.
But House Bill 1239 continues to draw virulent opposition from Republicans and from a couple of Democrats who charge that it encourages the filing of legal actions and will particularly harm small businesses who can be bled financially even if they win their cases.
The bill stems from a task force that met in 2023 and 2024 to study ways to help those with disabilities in the areas of housing, outdoor recreation, government access and access to the legal system. And while it made some 50 recommendations, it was those seeking to expand the Colorado Anti-Discrimination Act that have drawn scrutiny and concern from business leaders.
The task force recommended some sweeping changes. It suggested allowing plaintiffs to sue for emotional damages in state court after a 2022 Supreme Court ruling struck that ability on a federal level, and it further suggested awarding punitive damages for intentional harm. It recommended extending the timeline to file legal actions from 60 days in some cases up to three years, and members said that existing caps on noneconomic damages should be replaced by higher caps that are tiered based on business size.
A slew of changes
When Democratic Rep. Yara Zokaie of Fort Collins introduced HB 1239 in mid-February, however, there was no mention of potential new punitive damages, and the cap on emotional and other noneconomic damages was proposed at $50,000. The suggested three-year timeline for filing legal actions was reduced to one year, and the bill gave special allowance to small businesses to get their damages cut in half if they fixed the problem within 30 days of receiving a complaint.
While officials in Democratic Gov. Jared Polis’ administration played a large role in some of those compromises, business leaders believed that more was needed. In the House Judiciary Committee in February, they convinced members to extend the 50% reduction in penalties to all businesses that cured violations within 30 days and for small businesses — those with 25 or fewer employees that generate no more than $3.5 million in annual gross income — that cure violations within 120 days.
Colorado state Reps. Yara Zokaie and Andy Boesenecker explain their bill on rights for individuals with disabilities to the Colorado House on March 31.
Then last month, the sponsors, who now also included Democratic Rep. Andy Boesenecker of Fort Collins, eliminated the provision extending the time to file administrative complaints to one year. Current law allows a one-year filing period in the case of housing actions but 300 days for employment claims and just 60 days for claims of public accommodations, a category that can include any business open to the public.
Reasonable or punitive?
Reverting to existing time frames was necessary, sponsors acknowledged, because adding time to the clock for legal claims likely would have subjected the state to more claims and, thus, would require setting aside as much as $2.2 million annually for fines and penalties. But with the state facing a $1.2 billion hole in next year’s budget, that provision had to go, and the Legislative Council assumed the remaining proposed changes would result in only three more claims against the state per year.
“There is a reason why we have been able to work with business communities — that is because of the changes in the bill you have before you,” Boesenecker said just before the House gave final approval to bill on March 31. The final vote was 40-24, with Democratic Reps. Shannon Bird of Westminster and Bob Marshall of Highlands Ranch joining all Republicans in voting against it.
But as that final tally suggests, GOP legislators did not feel the changes went far enough.
Rep. Jarvis Caldwell, R-Monument, noted that the bill contains a provision mandating a $5,000 administrative fine to businesses for each person that files complaints — a “punitive” penalty that can grow quickly and harm small shops and restaurants, he argued. Zokaie retorted that the fine now exists in law and that the only change made in the bill was boosting it from $3,500 to $5,000 to account for inflation.
Colorado state Rep. Rick Taggart speaks against House Bill 1239 in the House on March 31.
Rep. Rick Taggart, a Grand Junction Republican and former CEO of an outdoor-gear company, argued that businesses should be allowed to cure violations without facing any fines or penalties. Not doing so equates to a violation of due process, he said.
GOP calls it a “gotcha” bill for small business
Rep. Ryan Armagost, R-Berthoud, said that even the negotiated $50,000 cap on noneconomic damages was too high and tried unsuccessfully to lower it to $10,000. Caldwell voiced an opinion shared by numerous critics saying that the bill “is encouraging more litigation.”
“This bill is a gotcha bill to small businesses, giving them no recourse or ability to fix what they’ve done wrong,” said Rep. Rebecca Keltie, R-Colorado Springs. “If this bill was about fixing things, there would be a grace period. But there’s not. It’s problem-solving versus problem punishment … Fifty thousand dollars is devastating to a business, particularly a new business”
But Rep. Denver Democratic Rep. Jennifer Bacon noted the efforts that former Rep. David Ortiz, who lost the use of his legs while serving in the U.S. Army, took to ensure that businesses must follow the Americans with Disabilities Act, which was signed in 1990. Business owners have now had 35 years to give Coloradans in wheelchairs and with other disabilities equal access to their premises and making those who don’t do so liable for emotional damages of just $50,000 is “getting off easy,” she argued.
Backers say helps is needed for persons with disabilities
Similarly, Boesenecker and Zokaie rebuffed efforts to eliminate penalties for businesses that cure violations, saying that lack of punishment would fail to recognize the real harm that has been done to people. The bill, marking the largest expansion of the Colorado Anti-Discrimination Act since it passed 70 years ago, allows individuals to seek redress in a way that acknowledges their suffering without penalties so stiff as to shutter inadvertent violators, they said.
“For too long, Coloradans with disabilities have faced real barriers,” Boesenecker said. “This bill is about ensuring fairness … and ensuring that when real discrimination occurs, Coloradans have a path to justice.”
The first hearing in the Senate is scheduled for April 14 at 1:30 p.m. before the Senate Judiciary Committee.