CCRD's 2016 Initiatives -- Fewer Meritless Claims, Increased Awareness of Service and Comfort Animals and Accommodation of Transgendered Employees
In 2016, Colorado employers should expect fewer meritless employment discrimination claims, but more emphasis from the Colorado Civil Rights Division (“CCRD”)[1] on working with employees who need service or comfort animals and accommodation of transgendered employees in the workplace. On December 15, 2015, Colorado Department of Regulatory Agencies (“DORA”) Executive Director Joe Neguse, and CCRD Director Rufina Hernandez addressed the Labor and Employment Council for the Colorado Association of Commerce & Industry (“CACI”) and provided an overview of the CCRD’s 2016 initiatives. Campbell Litigation attended the meeting and provides the following summary.
A. Pre-Analysis Screening to Eliminate “Meritless” Claims
In 2016, CCRD will implement a pilot program focused on screening out meritless employment claims. Once CCRD receives a complaint, it begins investigating the claim and part of the investigation involves the employer’s response to the claim, which may include a statement of position, responding to request for information and, at times, employee interviews. The investigations are not only time consuming for the CCRD, but are also time consuming and expensive for the employer, especially if the company hires a lawyer to defend it at the CCRD. Under the pilot program, CCRD will utilize a pre-analysis screening process for newly filed complaints, looking at objective criteria to determine whether the claim has any merit. If the claim has merit, it will proceed through the normal CCRD process. Those claims without merit will be dismissed. Employers should benefit from the pilot program by saving time and money by not having to respond to meritless claims. Campbell Litigation will follow the CCRD’s progress on the pilot program and report back later in the year.
B. CCRD to Provide More Guidance to Colorado Employers Around Transgender Status and Service and Comfort Animals.
Although the CCRD has enforced CADA since 1957, Colorado did not provide protection of transgendered employees until 2007.[2] Accordingly, its guidance on transgendered employment issues has been minimal. In 2016, CCRD intends to provide more guidance to employers and employees regarding accommodating transgendered employees in the workplace. CCRD believes it is important for employers to know that when a transgender employee makes a request for an accommodation, the employer must engage in an interactive process similar to that required by the Americans with Disability Act.[3] The most common issue CCRD has seen involving transgendered employees is determining what restroom a transgendered employee may use in the office. Ms. Hernandez indicated that CCRD believes that the employee must be able to use a restroom that conforms with his or her gender identity.[4] This can be a difficult situations for co-works and Campbell Litigation looks forward to sharing the CCRD’s additional guidance, once it is created. It is important, however, that Colorado companies are aware of the CCRD’s increased focus on transgendered employee accommodations and educate management and employees about these issues. With respect to the interactive process, companies will need to ensure that management does not make rash decisions about requests from transgendered employees that could result in liability to the company.
CCRD will also focus on enhancing its guidance to employers on the use of service and comfort animals in the workplace. While Colorado restricts a service animal to a dog or miniature horse, a comfort animal has no restrictions.[5] The issue arises when an employee requests permission to bring her comfort animal into the workplace. Depending on the comfort animal, management may deny the request. According to the CCRD, however, the employer must make some attempt to accommodate the animal, but may deny the request if it presents an undue financial or administrative burden on the company.[6] In 2016, companies should educate and train front-line management on how to handle service or comfort animal requests from employees to ensure consideration is given to the request prior to making a decision.
C. Conclusion
In 2016, Colorado employers should see benefit in CCRD’s pre-screening of meritless claims, but will need to ensure they are educating management and employees on accommodation of transgendered employees and properly dealing with employee requests for service or comfort animals.
[1] The CCRD enforces the Colorado Anti-Discrimination Act, C.R.S. § 24-34-401, et seq. (“CADA”), which includes anti-discrimination laws in the areas of employment, housing, and public accommodations.
[2] See C.R.S. § 24-34-402 (2007). Colorado did not provide protection for transgender people in housing and public accommodations until 2008. See C.R.S. §§ 24-34-502 and 24-34-602 (2008).
[3] Under the Americans with Disabilities Act, when a disabled employee requests an accommodation, an employer is required to engage in the “interactive process” whereby the employer must analyze the job functions to determine the essential functions of the job, identify barriers to job performance by consulting with the employee to learn the employee’s precise limitations, and explore accommodations that would be most effective. See, e.g., Taylor v. Phoenixville School Dist., 184 F. 3d 296 (3d Cir. 1999).
[4] Sexual Orientation & Transgender Status Discrimination, Colo. C.R. Div., https://drive.google.com/file/d/0Bz-k2zYFlBh6Qy1hSXd2blMwcjQ/view (last visited Jan. 5, 2016).
[5] Service and Assistance Animals in Housing, Colo. C.R. Div., https://drive.google.com/file/d/0Bz-k2zYFlBh6OUxzYl9xMUx4c3M/view (last visited Jan. 5, 2016). The CCRD uses the terms “assistance animal” and “comfort animal” interchangeably.
[6] Id.