The coronavirus pandemic our country is going through right now is unprecedented – people are sick, people are dying, and everyone is scared. Different states are battling the coronavirus in different ways as businesses struggle to survive. Here in Denver, as of March 24, the mayor has declared a state of local disaster, pursuant to C.R.S. § 24-33.5-701, et seq., and ordered all individuals to STAY AT HOME and shelter in place. This means that all non-essential businesses should close, unless they can operate with employees from home and/or with appropriate “social distancing.” In particular:
“All businesses with a facility in Denver, except Essential Businesses as defined below in Section 6, are required to cease all activities at facilities located within Denver, except Minimum Basic Operations, as defined in Section 6. For clarity, businesses may also continue operations consisting exclusively of employees or contractors performing activities at their own residences (e.g., working from home). All Essential Businesses are asked to remain open. To the greatest extent feasible, Essential Businesses shall comply with Social Distancing Requirements as defined in Section 6, below, including by maintaining six-foot social distancing for both employees and members of the public, including, but not limited to, when any customers are standing in line.”
March 22 CDPHE Order.
If your business is one of those that will or can remain open, you may have some questions about your rights. First of all, you should understand that circumstances regarding the pandemic are changing as information becomes available and that this is new to everyone. Congress is expected to pass a bill to help both businesses and their employees, but new laws are likely to come in to effect.
Hopefully, you have a caring employer who is taking all the necessary precautions to keep their employees safe and to help you endure through this trying time. However, you may still have some questions and concerns about your rights and safety during this time.
Can my employer require me go to work during the coronavirus outbreak?
Unless you have a valid disability that qualifies under the Americans with Disabilities Act (ADA), your employer can require you to come in to work. If you have health concerns, the best thing you can do is provide notice by talking to them and communicating regarding your concerns and your particular condition. However, if your business is one that was mandated to close and your employer remains open, and then fires you because you refuse to go to work, you may have a case for wrongful termination in violation of public policy. Before doing anything, you should speak to your employer and communicate that you have good cause not to work because of a medical vulnerability you have and that you fear for your safety. If you make a good faith effort to resolve the situation and your employer still fires you, you can apply for unemployment and look into a wrongful termination lawsuit.
Can my employer require me to work if I need to care for a sick family member?
The Family Medical Leave Act (FMLA) requires employers to provide eligible employees up to 12 workweeks of unpaid leave per year to care for yourself or family members, with continued health benefits. Employers must also allow employees to return to the same job (or one that is equivalent). See the Department of Labor website for all the eligibility requirements and details.
Is my employer required to provide safety equipment against the coronavirus?
There are OSHA (Occupational Safety and Health Administration) laws that protect you. The general duty clause from OSHA requires your employer to provide “a place of employment which (is) free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Of course, your employer can’t eliminate the coronavirus from your workplace but it should make that environment as safe as reasonably possible. A lot of this will come down to them putting forth a “good faith effort” because safety equipment is in short supply at the moment. So, while a hospital is typically required to provide doctors and nurses with the masks, gowns, and even hazmat suits, a grocery store can get away with providing gloves and hand sanitizer if that is all they are able to get. However, in most cases, they shouldn’t prevent you from using additional safety equipment that you provide so long as it doesn’t interfere with your job.
Can I sue my employer if they require me to work and I get sick?
In most cases, probably not. Simply put, it is very difficult to prove how or where someone caught the coronavirus because, as of now, the virus hasn’t mutated very much. What that means is that most people who are sick in your area will have a very similar strain of the virus, so it’s next to impossible to trace. Remember, the burden of proof is on you to show that you not only caught the virus at work but that it was your employer’s fault.
However, if your employer knowingly puts you in a dangerous situation without required protection, or deliberately didn’t inform employees that they had been exposed, then you may have some recourse. Again, this entire situation is something the country and the courts haven’t dealt with much so there is a lot grey area to navigate. And the burden of proof will be still be on you.
I am Asian, Latino, African American, Caucasian, or a member of another race and my employer is treating me differently
Disparate treatment because of your race continues to be prohibited by Title VII of the Civil Rights Act of 1964 and is absolutely illegal. If you can prove that your employer has singled you out and treated you differently from the other employees — such as cutting your hours or making you wear a mask when no one else is required to — because of your race you may have a case for discrimination.
If I test positive for the coronavirus, can my employer tell the other employees?
No, your employer is required to maintain your privacy regarding any medical information. However, they can (and should) notify other employees that they may have been exposed to the coronavirus, or that there may otherwise be a health hazard, without disclosing your name.
 See https://www.denvergov.org/content/denvergov/en/mayors-office/newsroom/2020/city-s-covid-19-response-update-and-stay-at-home-order.html
 The FMLA applies to all public agencies, including local, State, and Federal employers, and local education agencies (schools); and private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year – including joint employers and successors of covered employers. If you are working for business with fewer than 50 employees, they are not required to offer FMLA benefits.
 For further legal advice on this issue, consult an attorney knowledgeable in federal and/or state privacy matters. Civil rights attorneys, such as the author of this article, are not experts in privacy law.
Getting older is fraught with different issues, such as health and finances. But one of the most difficult to deal with is the one form of discrimination nobody wants to talk about: ageism, or age discrimination.
Ageism and age discrimination
Discrimination against individuals based solely on their age is all but accepted and acceptable, especially in the workplace. Terms like geezer, senior citizen, and other derogatory terms along with unflattering media images enforce the negative stereotyping that comes with getting older.
Mark Zuckerberg once stated, “Younger people are smarter.” But is it true?
Stereotypes, learned ageism, and other factors have kept organizations like the American Association of Retired Persons (AARP) working to protect the rights of individuals over the age of 40 from being ignored and violated. In Colorado, the unemployment rate is one of the country’s lowest, one third of the state’s population is over the age of 50. But it hasn’t stopped anyone from being subjected to ageism, even in a labor market that’s hiring.
Incorrect stereotypes are partly responsible. Misconceptions about older workers include:
- They’re not up on new technology, including smartphones, can’t use it and are afraid of it
- They’re not willing to learn and accept change
- They can’t keep up with younger workers
- They’re sickly, unhealthy and have lots of health problems.
But studies into modern aging show that these are incorrect. Workers over 50 are more engaged, have greater levels of experience and low turnover rates. There are other benefits to hiring older workers as opposed to someone who just graduated from high school or college as well, like reliability.
That still doesn’t help when you find yourself terminated or unemployed over 50 and unable to find another job.
Age discrimination in Colorado
More than 20% of all workers in the US are over the age of 55, more than 33 million people.
The Age Discrimination in Employment Act of 1967 (ADEA) makes it illegal for private employers and governmental agencies to discriminate against workers over the age of 40.
The Older Workers Protection Act of 1990 was passed as an amendment to the ADEA to protect benefits for older workers.
Colorado also has its own Anti-Discrimination Act prohibiting ageism and discrimination as well as other factors. However, federal anti-discrimination laws includes employers with 15 or more employees. Colorado’s civil rights statute includes all employers, regardless of size or number of employees.
While it most often is inflicted by supervisors or managers, age-related comments by any employees that create a hostile work environment can be considered age discrimination and/or harassment.
The AARP reports that 1 in 5 claims made to the EEOC are specifically for age discrimination. Individuals born between 1946 through 1964, the so called “baby boomers,” are the fastest growing group filing these claims.
The AARP also reports that nearly 66% of older adults have either experienced or witnessed ageism and discrimination in the workplace.
Lack of employment is one of the biggest indicators of age discrimination in Colorado and nationally: although it is still legal for an employer to ask your birth date or date of graduation, it’s not legal to use it in a hiring decision. Still, job seekers over 50 are routinely not hired, passed over for promotion, or outright laid off and/or fired.
Age discrimination can happen at any age
Ageism and discrimination isn’t always about someone over 50 — it can also happen to women of childbearing age.
Refusing to hire women who “are able to get pregnant” is not only age discrimination, it’s also a form of gender discrimination. It’s also illegal to fire a female due to her pregnancy.
How can I fight back?
If your employer asks you to sign an ADEA waiver, speak to an attorney before you do.
You can fight against age discrimination, but it is a long, arduous fight. You can file an EEOC claim, but before you do, consider talking with a Denver, CO civil rights attorney who specializes in age discrimination.
Proving age discrimination can be difficult. The Civil Rights Litigation Group is dedicated to ensuring that every Colorado resident is protected from discrimination and other civil rights violations. Call today for your free consultation, or use our online contact form to schedule your appointment.
Filing a lawsuit for any kind of discrimination is a difficult decision that isn’t taken lightly. Age discrimination is particularly difficult, and can have long-term ramifications. Age discrimination is personal. You’ve worked hard for a long time and have a lot of years of good experience. But suddenly, after your 40th (or 50th) birthday, you wake up and realize you’re not working there anymore. You may have a very difficult time finding a new job, especially after 50. What happened?
With more employees shunning retirement and working longer, age discrimination is becoming more common in companies both large and small. The EEOC reports that age discrimination complaints are increasing. From 1997 through 2007, there were less than 20,000 filings per year.
In 2008, however, the number of filings increased from 23,000 to 25,000 per year. That’s just the people who filed a complaint — without a report, there are likely more cases of age discrimination that no one knows about. In Colorado alone, there were 370 age discrimination complaints filed in 2018. By comparison, California recorded 1,062, and Texas recorded 1,744.
So why do older people find themselves unemployed after a long, successful career? There are a number of misconceptions about “older workers,” including:
- They can’t deal with technology (i.e., computers, smartphones, conference calls, etc.)
- Their health insurance costs more, because after 50 they have more health problems
- They don’t need a job because they’re so close to retirement
- They cost more in wages and salaries, so it’s fiscally prudent to lay them off and hire younger, less expensive workers.
However, older workers tend to be more reliable than younger workers, but are generally targeted first in a reduction in force.
While employers are quite sneaky about hiding their age-discrimination tendencies, there are occasions where they make missteps, such as asking about your retirement, or making disparaging comments to younger employees about a worker over 40. That’s when you may decide to file a complaint with the EEOC, and follow with an age discrimination lawsuit.
Collecting evidence for age discrimination
If you’re finding yourself the target of such comments or treatment, document everything. For instance, if your boss asks you about your retirement plans, or makes other disparaging remarks, keep a record of the time, date, and any witnesses who heard it. Follow up with an email to him or her thanking him for his concern, and that you currently have no plans to retire, that you enjoy your work. Print and file copies of these types of emails and other documents.
- If you were told about such comments by another employee that were not made in your presence, document that as well, including the individual who told you.
Gather copies of all of your performance reviews, especially reviews that demonstrate your good work record and performance. If your reviews have abruptly changed after years of doing well, your previous good reviews will be a strong contrast.
Watch how younger employees are treated in relation to older employees, whether it’s work-related, promotion related, firing or layoff related, or how they are treated in the same circumstances as someone over 40. If you find a pattern of age-related bias, begin keeping records of these individuals and how they were treated differently than those under 35 or 40. This is especially true in disciplinary cases.
Favoritism towards younger employees, such as work assignments, sales leads, meetings, promotions and other patterns may also indicate discrimination. This should also be documented, even if the supervisor is “over a certain age.”
After a period of good performance reviews, if you suddenly find yourself with negative reviews, write-ups or other disciplinary actions, there’s a good chance you are being targeted. The goal is to either find a way to fire you or to get you to quit. Again, documentation is key to proving your case in an age discrimination lawsuit.
Whether you are in a hearing with the Colorado Civil Rights Division (CCRD) or EEOC, or a court hearing, you’ll be asked questions by a well-equipped defense counsel. While you are there to prove disparate treatment and disparate impact, they are ready to disprove your claims of age discrimination.
You’ll be required to prove that you are in a protected class (over 40) and are qualified to do your job, but that you suffered an adverse action in your employment and were treated differently than employees who were under 40. Expect pointed questions from both your own attorney, and by your employer’s attorney. You’ll be asked about your training, qualifications, and other relevant questions that are intended to disprove your claim.
Your employer will then be required to prove that the action was not discriminatory, and the action had a legitimate reason, and was for a reason other than age. While a requirement to lift 50+ pounds occasionally might be reasonable for some jobs, they could be used to discriminate against individuals where such a requirement wouldn’t be necessary.
Should this be proven, at this point, the burden of proof is yours to show that the action was a pretext and in fact, discriminatory. Working with an age discrimination attorney will help you prove your case successfully to increase your chance of winning your case and having a settlement.
Your Denver civil rights attorney
Being fired or laid off because of your age, even when hidden by another reason, is age discrimination and against the law. Get help with your case before you file a complaint. Call the Civil Rights Litigation Group at (720) 515-6165, or use our online contact form, to schedule your free consultation with us today. We’ll aggressively defend you in court and make sure your rights are protected and you are treated fairly.
Religion is a personal choice, no matter what the denomination. You may choose to share your beliefs with others, or you may keep them to yourself. You may also eschew religion if you choose to. But religious discrimination is not a choice your employer has a right to make.
One of the most demeaning forms of discrimination is on the basis of your choice of religion. Whether you grew up with your religion beliefs, or chose them later, it should never be used against you. If it is, your civil rights have been violated through religious discrimination. And in the workplace, you may have grounds for a lawsuit.
The First Amendment
What it actually says is:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
There is no “national religion” in the U.S., as there are in other countries, nor limitations on the practice of religion.
Title VII of the Civil Rights Act of 1964 also prohibits employers from discriminating against employees.
Two types of religious discrimination
There are two general ways that you could be harassed based on your religion:
- Quid Pro Quo, (Latin for “this and that”), when you are required to alter or abandon a religious belief in order to obtain employment, or an adverse action that occurs after you accept a position but refuse to change your beliefs.
- A Hostile Work Environment, in which you are subjected to negative comments and/or actions that create a hostile work environment, and suffer a “negative employment action.” Employers are responsible for the actions of their employees.
There are some exceptions. Religious organizations, by their very nature, have the right to hire based on their own religious beliefs, especially if it’s activities are religious on a day-to-day basis. Clergy members are also prohibited from filing religious discrimination lawsuits, because doing so would allow the government to interfere in religious activities. They are not, however, exempt from other forms of discrimination, such as race based or sex based.
Proving religious discrimination
If you believe you are the victim of religious discrimination, it’s important to:
- Report each incident of religious discrimination to your employer
- Personally document each incident, as well as each time you report an incident
Should your employer fail to take corrective action, you can file a Claim of Discrimination with either the EEOC or the Colorado Civil Rights Division (CCRD). You’ll have 300 days from the act of religious discrimination in which to file your complaint with the EEOC, or 180 days with the CCRD. After that, you will lose your right to file your religious discrimination claim under Title VII or Colorado law.
The American Bar Association’s criteria for a prima facie case states that a plaintiff must show that:
- The harassment occurred because of, or was motivated by, religion
- The conduct was pervasive or severe
- The conduct had a detrimental effect on the plaintiff and
- The harassment would have had such an effect on a reasonable person of the same religion in that position
Once you successfully prove your claim of religious discrimination, there are a number of remedies available under the law. You may be awarded compensatory damages including lost wages and benefits, emotional distress, and occasionally, punitive damages. You may also be awarded attorney’s fees and litigation costs. The court could also require the company to reinstate you, and issue an injunction against the company barring them from committing further acts of discrimination.
An attorney who specializes in civil rights violations and employment or religious discrimination can help you navigate this complicated area of law.
Denver’s civil rights attorney
You have the right to your own religion, guaranteed by the First Amendment. Employment discrimination in any form is a difficult and complex area of the law. Need help? Call the Civil Rights Litigation Group at (720) 515-6165, or use our online contact form, to schedule your free consultation with us today. We’ll aggressively defend you in court and make sure your rights are protected under the First Amendment.
Merriam-Webster’s Dictionary defines discrimination as,
- prejudiced or prejudicial outlook, action, or treatment, racial discrimination
- the act, practice, or an instance of discriminating categorically rather than individually
It can also mean the act of distinguishing or differentiating. But in the area of civil rights, discrimination isn’t always cut and dried.
At-will employment and discrimination
Colorado is one of the many states that have employment-at-will. This means that you or your employer can implement or terminate your employment at any time. Two weeks’ notice is a business practice, not the law, and you can be terminated on a moment’s notice, without notice. The company doesn’t need a reason, nor do they have to let you know in advance (although many companies do give advance notices of layoffs.)
You also don’t need a reason to quit, nor let your employer know in advance that you are terminating your employment. However, giving inadequate notice may affect your application for unemployment benefits. (Even if you are discharged for a different reason like medical conditions, harassment in the workplace, and hazardous working conditions, you can still apply for unemployment.)
If you ask most people, they’ll probably tell you that discrimination doesn’t really exist anymore because of the legal protections in place. Unfortunately, that’s not actually true. Discrimination is a little harder to prove, but it does still exist in various forms.
The US has a number of laws against workplace discrimination:
Other forms of discrimination may be based on religion or sexual orientation, harassment, (sexual and non-sexual), and retaliation. Individuals in these groups are known as “protected classes,” and may be the focus of discrimination.
It may be unfair — but is it discrimination?
Discrimination can manifest in two ways:
- Direct—being treated less favorably than the person next to you
- Indirect—imposing a condition that you are unable to comply with
For instance: early retirement may be offered to employees who have been with the company for many years and eligible for retirement. But in many cases, mandatory retirement may amount to age discrimination.
Another instance is a company adding a requirement to a job function knowing that some individuals could not meet the requirement.
Here are some questions to consider whether you are being discriminated against:
- Are you, or others like you, being singled out?
- Are you a member of a protected class, but experiencing unfair treatment or termination/layoffs? (I.e., workers over 50 being laid off and replaced by much younger employees.)
- Are others in a protected class (LGBT, Latino women) being singled out as well?
- Is there a pattern of bias or discrimination against a particular class, such as minorities or women, consistently being passed over for promotions or job transfers?
- Are complaints of harassment or other adverse working conditions being ignored?
- Has your workload or work scheduled changed, but no one else’s has?
- Have you or others recently reported wrongdoing, but are now being retaliated against? (Fewer work hours, demotion, pay cut, etc.)
- Have you consistently done a good job, but are now receiving disciplinary notices?
These are just some of the ways you may be able to determine if there is discrimination and not a complete list of questions to ask.
Document all evidence
Most employers will deny any and all accusations of discrimination, even if it’s blatantly obvious. You’ll need some tools in your arsenal to fight back.
If you believe you’re being targeted for discrimination, your best defense is to document as much as you can. Direct evidence is best, but you may only have evidence that is circumstantial.
- Performance reviews — you probably won’t be told outright that you are being terminated for an illegal reason. Instead, the official reason may be poor performance, company policy violations, or something similar. If your company does regular performance reviews (some do yearly, some do quarterly, etc.) get and keep copies where they will always be available. Paper copies kept at home are good, but an electronic copy in your Drive, Dropbox or other cloud storage as a backup is even better.
- Your job description — do you have a copy? Get one, and keep it on file, both paper and electronic, along with your performance reviews. Should your company suddenly terminate you for “performance issues,” you’ll be able to show what you were doing, how it was satisfactory if you were passed over for promotion or terminated in favor of someone less qualified.
- Employment contract — if your company uses them, get a copy if you don’t have one. As your HR department.
- Keep any relevant communications — save memos, texts, emails, phone messages, or anything else that can show bias may be used against you.
- Timing of termination, demotion or other adverse event — if you informed your employer of your medical condition, (i.e., pregnancy) and were abruptly terminated shortly thereafter, this may prove discrimination.
- Medical records — if you have a disability and/or medical condition, these can be added into evidence to back up your claim that you may have been illegally terminated for medical reasons.
- Medical treatment — if you’ve sought out mental health assistance as a result of harassment or other adverse work conditions, your attorney will also need to be informed. You’ll be asked to provide contact information of doctors, counselors, etc.
- Termination documents — should your employer give you a suspicious reason for termination (i.e., chronic tardiness), request express written proof of their claim. If you had not committed this violation of company policy, you will have evidence that shows it was not the actual reason for your termination. Get copies of any documentation related to your termination.
- Testimonies — both your own personal testimony and that of witnesses can be very strong corroborating evidence to prove your case. This helps avoid the “he said, she said” type of case.
Whatever you have to give to your attorney will go a long way in helping him or her defend you in a discrimination complaint.
Workplace discrimination is against the law
There are strict laws in the U.S. against discrimination. If you believe you’ve been the target of workplace discrimination, call the Civil Rights Litigation Group in Denver at (720) 515-6165 for a free consultation. We’re experienced in helping people like you fight back. We can help you file your EEOC complaint, and represent you in court when the time comes.