Bill Summary for Bill Number SB09-110

Date: 04/27/2009

Final
BILL SUMMARY for SB09-110

HOUSE COMMITTEE ON JUDICIARY

Votes: View-->	Action Taken:
Adopt prepared amendment L.013 (Attachment A). Th Refer Senate Bill 09-110, as amended, to the Commi	PASS PASS

02:38 PM -- Senate Bill 09-110

Representative Levy, sponsor, presented Senate Bill 09-110 concerning the continuation of the regulation of civil rights issues. This bill extends the Colorado Civil Rights Commission and Division (CCRD) until July 1, 2018, and makes certain changes to the commission, the CCRD and anti-discrimination law. The commission and the Attorney General are given expanded authority to initiate complaints. The subpoena powers of the CCRD director are extended beyond employment cases to include discrimination in housing and public accommodations. Anti-discrimination laws are expanded to include adverse employment actions that impact an employee's terms, conditions, or privileges of employment. Regardless of the commission's findings, a charging party whose claim cannot be brought under federal civil rights statutes, is entitled to a formal hearing before the commission or an administrative law judge.

As amended by the Senate, the bill still creates a new cause of action for discrimination based on actions that impact an employee's terms, conditions or privileges of employment. It also gives a charging party the ability to request a hearing before the commission or administrative law judge.

Representative Levy distributed prepared amendment L.013 (Attachment A). The amendment addresses affirmative relief that may be ordered by a court or the Civil Rights Commission. She also distributed a Legislative Council Staff memorandum regarding the fiscal impact of amendment L.013 (Attachment B).

02:44 PM -- Steven Chavez and Bruce Harrelson, Department of Regulatory Agencies (DORA), joined the committee to walk through the sunset report. The following recommendations were made by DORA and discussed in the sunset review report:

continue the Colorado Civil Rights Commission for nine years, until 2018;
continue the Colorado Civil Rights Division for nine years, until 2018;
continue the director's subpoena powers in employment cases, expand such power to include all settings of discrimination, and repeal the separate sunset review provision for employment cases;
authorize the commission to initiate complaints on its own motion;
authorize the director to delegate to a member of the division staff the authority to sign letters of determination on behalf of the division;
clarify the roles and responsibilities of the commission and the division;
repeal the requirement that charges of discrimination be filed with division in duplicate;
include in the definition of unfair and discriminatory employment practices adverse employment actions that impact a charging party's terms, conditions, or privileges of employment;
remove from the commission's jurisdiction those cases involving employees who are terminated or suffer other adverse employment actions due to inquiring about salary;
harmonize the conflicting definitions of discrimination with respect to public accommodations;
resume publishing annual reports, as required by statute;
increase education and outreach efforts;
conduct a comprehensive overhaul of all commission rules;
revise the division's intake process to focus on the acquisition of any evidence of a prima facie case at the time the charge is filed;
send all information submitted by a charging party in a case to the respondent to facilitate a more thorough defense, thereby helping to reduce the amount of staff time needed to conduct any subsequent investigation; and
improve recordkeeping procedures.

Mr. Chavez discussed amendment L.013. He provided some background information about Colorado and federal employment law. Representative Levy clarified that the amendment does not create any new protected rights, but rather creates new remedies that would make it financially feasible to litigate a discrimination claim. Mr. Harrelson responded to committee questions about the recommendations contained in the 1998 sunset report. He discussed the makeup of the sunset review committee and the process of making such a review. The recommendations are made using certain statutory criteria. Mr. Chavez responded to committee questions about civil rights claims by state employees.

03:09 PM -- Barry Roseman, Plaintiff Employment Lawyers Association, spoke in support of the bill and the amendment. Mr. Roseman attempted to clarify information about civil rights law in Colorado and at the federal level. The amendment provides remedies in cases where individuals do not have a remedy available under current law. Mr. Roseman commented on the fiscal impact of the amendment. The committee discussed at length the process of making complaints to the CCRD and the availability of damages as a remedy. Mr. Roseman responded to questions from the committee about the decisions he makes about whether or not to take civil rights cases. He stated that the bill, with the amendment, helps to bring Colorado law into line with federal law. The committee discussed the required burden of proof and the appeals process for civil rights claims.

03:33 PM -- Dawn McLoughlin, representing herself, spoke in support of the bill. Ms. McLoughlin related details of her experience with sexual harassment in the workplace. She talked about the economic difficulties that resulted from her employment position. Individuals who work for small employers have few remedies when faced with civil rights violations.

03:38 PM -- Scott Moss, representing himself, spoke in support of the bill. Mr. Moss is a law professor at the University of Colorado. He provided information about employment discrimination law and the recovery of costs in civil rights cases. If an individual does not lose their job as a result of employment discrimination, and does not find another job reasonably quickly, compensatory damages do not exist under current law.

03:42 PM

The committee recessed to return to the House for floor work.

06:04 PM

Representative McCann brought the committee back to order.

06:05 PM -- Linda Meric, 9 to 5: National Association of Working Women, spoke in support of the bill and the amendment. Ms. Meric discussed her organization's effort to combat workplace discrimination and education efforts in the community. She talked about her experience as a member of the Colorado Pay Equity Commission, which recommended the provisions of amendment L.013. She provided anecdotal information about civil rights claims that have not been litigated due to a lack of remedies or compensation in the law for attorneys.

06:10 PM -- Mr. Moss continued his testimony. He provided examples from other states of laws that provide very limited damages and fees in employment law. These laws are generally regarded as inadequate because attorneys are unwilling to file such lawsuits. He discussed the limitations on punitive damages on civil rights cases at the federal level. Large settlements are uncommon in federal cases, according to various studies. Job losses do not appear to be the result of large damage awards. He stressed the need for attorneys fees and costs in order to incentivize attorneys to take these types of cases. If attorneys are not willing to litigate cases, violators can act without concern for legal consequences.

06:20 PM -- Randy Chapman, Legal Center for Disabilities and Older People, spoke in support of the bill. Mr. Chapman reiterated the testimony of prior witnesses regarding the difficulty in obtaining legal representation for civil rights claims.

06:23 PM -- Chris Ottele, Colorado Civil Justice League, spoke in support of the bill, but in opposition to the amendment. Mr. Ottele outlined his concerns with the amendment. First, the passage of the bill is likely to result in job losses because any employer facing litigation is subject to very high legal fees, which is prohibitive to small employers in particular. He stated that less than five percent of cases filed with the CCRD are found to have merit. Second, all employees with employers of over 15 individuals have remedies available to them. Mr. Ottele stated his belief that the amendment does not simply bring employees with small employers in line with those at large employers. He discussed the advantages of filing employment discrimination cases in state court rather than federal court. The federal court system is much more inclined to evaluate a case prior to going to trial. Also, it allows administrative agencies the power to award punitive damages. Mr. Ottele responded to questions from the committee about the process of litigating civil rights cases.

06:36 PM -- Jane Christman, Colorado Attorney General's Office, appeared to explain the Department of Law's fiscal note to the bill. The fiscal note is based on the number of cases that currently may not be filed against the state that would be allowed under the amendment. The Department of Law would be required to defend the state in such cases. The committee discussed the amendment with Ms. Christman.

06:53 PM -- William Martinez, Plaintiffs Employment Lawyers Association, spoke in support of the bill. Mr. Martinez discussed the waiver of sovereign immunity for the state. The bill does not provide any new waiver of immunity. He discussed some examples of clients with employment discrimination claims that lacked remedies. He stressed that the issue of the lack of remedies is not a hypothetical problem. He stated that small employers are not necessarily those with slight revenue incomes. Many are extremely successful and affluent. The committee discussed sovereign immunity for the state with Mr. Martinez.


BILL:	SB09-110
TIME:	07:13:40 PM
MOVED:	Levy
MOTION:	Adopt prepared amendment L.013 (Attachment A). The committee discussed the amendment and Representative Levy responded to questions. The motion passed on a vote of 7-4.
SECONDED:	Miklosi
		VOTE
	Apuan	Yes
	Court	Yes
	Gardner B.	No
	King	No
	Miklosi	Yes
	Pace	Yes
	Roberts	No
	Ryden	Yes
	Waller	No
	McCann	Yes
	Levy	Yes

Not Final YES: 7 NO: 4 EXC: 0 ABS: 0 FINAL ACTION: PASS

07:17 PM

Representative Levy wrapped up her presentation of the bill and asked for the committee's favorable recommendation. Committee members commented extensively about their positions on the bill.


BILL:	SB09-110
TIME:	07:31:43 PM
MOVED:	Levy
MOTION:	Refer Senate Bill 09-110, as amended, to the Committee on Appropriations with a favorable recommendation. The motion passed on a vote of 8-3.
SECONDED:	Miklosi
		VOTE
	Apuan	Yes
	Court	Yes
	Gardner B.	No
	King	No
	Miklosi	Yes
	Pace	Yes
	Roberts	Yes
	Ryden	Yes
	Waller	No
	McCann	Yes
	Levy	Yes

Final YES: 8 NO: 3 EXC: 0 ABS: 0 FINAL ACTION: PASS