Last year, NFIB was the most vocal opponent of House Bill 1136, which we called the “Sue Your Boss Bill.” NFIB testified in opposition at committee hearings and held a well-covered press conference in the Capitol calling on Gov. John Hickenlooper to veto it. When he regrettably signed it into law, we called it turning his back on his small-business roots.
Merrily Archer, an employer attorney who runs the Denver-based firm of EEO Legal Solutions, took a hard look at who HB 1136 was really meant to benefit, and wrote an article that minces no words, even about her own party
Excerpts
“HB-1136 was never about helping small employer victims like Rachel Martinez. On the contrary, HB-1136 was always about switching EEO enforcement forums from federal court, where knowledgeable federal judges routinely dismiss non-meritorious discrimination/harassment matters before trial, to Colorado state court, where overwhelmed judges unfamiliar with 50 years of federal employment law allow even the dumbest discrimination matters to reach, or careen darn close to, juries …
“As passed, HB-1136 gives PELA/CTLA attorneys the best of both worlds: the ability to file discrimination/harassment lawsuits in historically employee-friendly jurisdictions like Denver, Boulder, and Adams counties, while fully benefiting from the same damages and LAW available in the federal EEO enforcement system …
“Although discrimination is difficult to prove, it is extremely EASY to allege. And under HB-1136, employers start losing money as soon as the allegation is made …
“Cost-of-defense now drives employers’ settlement deliberations more than any other factor. In the federal enforcement system that HB-1136 replicates, employers instantly walk into a cost-of-defense conversation as soon as the charge of discrimination is made, regardless of wrong-doing …
“Thus, not only is it common knowledge within Colorado’s employment bar that employers, more often than not, settle out of cost-of-defense concerns, our study shows that this kind of “shakedown” has become an institutionalized tool to exact employer payouts …
“HB-1136’s primary cheerleader, Senate President Morgan Carroll, is an attorney with Denver personal injury giant, Bachus & Schanker.”
