On Wednesday, House Republicans said a Senate bill to increase remedies for workplace discrimination and harassment were simply too costly a price for small businesses and the state to bear. The House judiciary committee killed the civil rights legislation on a partisan line vote.
“I want to talk a little emphatically about the notion that somehow we should create a good business climate in Colorado by not providing access to the courts to protect people’s civil rights,” bill sponsor Rep. Claire Levy, D-Boulder, said. “The notion behind that is what we have to say is that ‘You all come to Colorado and have no fear that those pesky employees are going to sue you, and God forbid they request a jury trial. But come on over to Colorado; we are open to business.’ Having these remedies in law would not deter business from locating here or expanding here.”
While numerous individuals who had faced discrimination in small business environments testified in favor of the bill, explaining that they have been told to just “suck it up,” the fear of small business shut downs appeared more compelling to the committee.
SB 72 would have extended federal protections to those employed by businesses of 14 or fewer employees, which are currently exempted by federal law from seeking compensatory damages, punitive damages and attorney fees as part of their awards in discrimination cases. Had the bill passed, Colorado would have joined 43 states that have passed similar legislation into law.
Currently in Colorado, employees are protected against workplace discrimination for race, age, gender and sexual orientation among other things. However, they are not allowed to collect punitive damages, compensatory damages or attorney fees even if they prove discrimination in a complaint with the Colorado Civil Rights Commission or in Colorado courts.
Federal law does allow for individuals to sue employers for such damages but does not protect those who either are employed in a business with fewer than 15 people or are discriminated against due to sexual orientation.
The law would have made it possible for employees of small and large businesses to collect damages and attorney fees under Colorado law in cases where proven intentional discrimination occurs and would have allowed those discriminated against on the basis of sexual orientation and age to seek the same remedies.
It would have instructed the courts to consider the size of the business when determining the remedy. Currently only back pay, forward pay, reinstatement or hire, and interest on pay can be sought in courts.
Total remedies from a company with 14 employees or less is capped at $50,000, though the federal law, which the bill is tied to for determining remedy amounts, allows employees of larger organizations, such as the state government, to seek awards of up to $300,000.
Republicans were convinced by testimony from business advocates that small business would suffer under the bill and its creation would hamper job creation in the state. Those groups also said that there were plenty of avenues for victims to pursue lawsuits and found the bill to be little more than a gift to trial lawyers.
“The economic effect alone of this bill is enough to reject this bill. This bill will hurt Colorado’s ability to attract business, making it more expensive and riskier for employers…,” said Ed Kennedy, a representative of the Colorado Civil Justice League, a group which is part of a string of similar groups across the country that seeks to reduce litigation.
It was a stance that seemed to infuriate Democrats who spoke out that the only businesses that would be affected by the bill would be those who discriminate.
“I had to take a deep breath when you made the comment that this would kill business. I think what promotes business in Colorado is that we won’t tolerate discrimination,” Rep. Nancy Todd, D-Aurora, said. “As a woman I am really offended by that kind of a statement. Number two, 43 other states in the nation have passed this law and I don’t see them going out of business.”
Tony Gagliardi from the National Federation of Independent Business, said that only 10 percent of small business owners were considering adding employees this year. He said that for many businesses, further litigation risks could keep them from hiring new employees.
“Sometimes they just throw up their hands and say, ‘You know, I’m not going to add anybody,'” Gagliardi said.
Levy wholeheartedly disagreed with the assertion.
“I think if you ask any business person who is interested in expanding their business, to stop growing … when they hit 14 employees because they might be sued for employment discrimination under title 7, they would say that is absurd.”
The bill failed 5-4.