Following three months of deliberations, a task force studying the rights of Coloradans with disabilities has softened some recommendations to boost awards in antidiscrimination lawsuits but still offered proposals likely to stir significant business opposition.
Among the task force’s recommendations are to let plaintiffs in disability-related antidiscrimination suits seek emotional damages, to replace existing caps on noneconomic damages and to extend to three years the timeline for filing such legal action. The recommendations — along with about 50 less controversial suggestions involving housing accessibility, outdoor recreation and government services — are likely to end up in a bill during this legislative session.
During sometimes combative meetings of the task force’s executive committee this month, members reined in several other proposals issued in a lengthy report in October. They did not, for example, move forward a suggestion to allow for filing of lawsuits in discrimination cases before administrative remedies within the state government are exhausted, and they rejected an effort to remove non-economic damage caps altogether in these cases.
Still, the proposed changes to the Colorado Anti-Discrimination Act are sweeping enough that they already have elicited pleas for caution and restraint from five state agencies. And they certainly will produce pushback from business leaders concerned that loosening restrictions on lawsuits around alleged discrimination against those with disabilities will result in a flood of legal action that could hurt small business disproportionately.
“Not good” for business vs. “basic human rights”
“What this is going to do to the business community, it’s just not good,” said Keirsten Beck, executive vice president and general counsel of Kroenke Sports & Entertainment, speaking specifically about the extension of lawsuit timelines in comments that reflected her concerns about many of the proposals. “Our businesses right now already are having a difficult time. Colorado went from being one of the best business environments in the country to one of the worst in just over 10 years.”
However, advocates for the disabled community — particularly former state Rep. David Ortiz, whose 2023 bill created the task force after legislators rebuffed numerous suggested amendments to CADA — say the changes are overdue. Ortiz and others say that Coloradans with disabilities have too long been living under lesser standards than the rest of the population and that allowing them to fight and sue for equal treatment is the way to create a level playing field.
In addition to advocating for the most substantial changes possible, Ortiz railed against agencies such as the Colorado Department of Labor and Employment and the Colorado Office of Economic Development and International Trade that sought restraint.
Former state Rep. David Ortiz speaks during an online meeting of the Task Force Related to the Rights of Coloradans with Disabilities
“There’s a real opportunity to finally secure basic access and basic human rights for people with disabilities, and they are big-time scared,” said Ortiz, who was paralyzed from the waist down during his service with the U.S. Army. “I hope everybody read between the lines and you are ready for the fight ahead.”
Specific recommendations of task force
Some of that fight will revolve around the ability of plaintiffs with disabilities to seek emotional-distress damages again in lawsuits after a 2022 U.S. Supreme Court ruling nixed that ability in federal suits. The task force recommended reinstatement of those potential damages on a state level, but with the caveat that legislators should establish tiered caps based on conditions like the size or net revenues of the defendant employer.
The task force also recommended replacing existing federal caps on damages in discrimination cases involving housing, employment and public accommodations with the same new legislatively tiered caps. A task-force report originally recommended the removal of those caps, but Beck argued that the absence of caps on construction-defects lawsuits is a big reason for the lack of condominiums being built in Colorado, adding that removal of caps would be a non-starter in trying to build consensus with business leaders.
Those comments brought one of several stinging rebukes from Ortiz, who said the constant threats of business opposition were not helpful to crafting the best recommendations. Beck retorted, however, that the aim of the task force was to put forth recommendations that could pass the Legislature this time, and punitive measures that could allow trial attorneys to target businesses are suggestions that will only build opposition.
Elizabeth Moran, executive director of The Arc of Colorado, speaks during an online meeting of the Task Force Related to the Rights of Coloradans with Disabilities
Task-force members also compromised on a proposal that would have let plaintiffs alleging discrimination involving disabilities file lawsuits before the Colorado Civil Rights Division had finished its investigation into complaints and issued an administrative remedy. Proponents of the idea say it takes too long for the state to investigate claims, but business leaders have argued that the administrative process is the best way to reach a compromise or settlement without having to go through the costly court process.
Business won and lost attempts at compromise
Ultimately, the executive committee recommended keeping the requirement to exhaust administrative remedies in place but reducing from 180 to 90 days the timeline at which a plaintiff could petition the division to release them to sue because they no longer feel the process will lead to a consensus agreement. It also recommended an additional exemption from that timeline if “immediate judicial intervention is necessary to mitigate or prevent further harm.”
But the executive committee also recommended, in a 3-2 vote, that discrimination claimants be allowed to sue for punitive damages if they can prove a business or public entity intentionally meant to violate their civil rights. While proponents of the change like Ortiz said that is a high bar that will be difficult to meet, Beck warned that it will open the door to all sorts of plaintiffs seeking punitive damages to try to drive up settlement costs.
“Punitive damages are not a real winner,” she said. For that one really bad actor, this is appropriate. The problem is it’s going to be used against 99 unintentional actors.”
Finally, the executive committee recommended extending the timeline for filing discrimination claims involving employment, housing and government to three years from the alleged instance of discrimination. Now, those deadlines are set at 60 days for public accommodations claims, 300 days for employment claims and a year for housing actions — meaning the deadlines would grow anywhere from three times to 18 times as long.
Draft bill has different provisions than task force recommended
Beck warned that the extended period to get sued will raise the cost of liability insurance for employers, and Littler shareholder Jennifer Harpole warned the new deadline makes it harder to defend against a claim that something happened three years earlier. But Elizabeth Moran, executive director of The Arc of Colorado, noted that timelines for fraud or breach-of-contract suits are three years, and Colorado Cross-Disability Coalition Co-Executive Director Hillary Jorgensen said some people with disabilities don’t understand the discrimination that they’ve faced right away.
Littler shareholder Jennifer Harpole speaks during an online meeting of the Task Force Related to the Rights of Coloradans with Disabilities
Now that the committee has made its recommendations, it will be up to legislators to determine if they will be introduced as suggested in a bill form and if those provisions stay intact during the debate over the bill. And a Jan. 15 draft bill obtained by The Sum & Substance shows that the legislation already may be starting at a different point than the committee discussion ended.
The bill, for example, makes no mention whatsoever of caps on emotional or other forms of non-monetary damages and does not breach the idea of the tiered caps that committee members hoped legislators could construct. Also, it proposes boosting the time limits for filing these discrimination claims only to one year instead of to three years.
Regardless of the details, though, it’s clear that the Legislature is set to restart a debate from the 2023 session on whether the legal remedies available to persons with disabilities are adequate. And again, it appears business leaders and advocates for that community are starting with different definitions of what they think is acceptable and what they think is a potential financial burden that is greater than the discrimination being alleged.