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February, 14, 2013 Print Friendly

Peter Blake: Employment lawyers seek a greater payoff in discrimination cases

Peter Blake: Employment lawyers seek a greater payoff in discrimination cases

By Peter Blake

Earning her keep.

On Jan. 1 state Senate Majority Leader Morgan Carroll joined the law firm of Bachus and Schanker, a hire they trumpeted at the top of their Web page. You know them by their omnipresent TV ads which proclaim, “Our passion is justice.”

The slogan is trademarked. Your passion is going to have to be less noble.

It seemed like an odd time for the Aurora Democrat to begin a new job. The session started just eight days later and Carroll will be too busy to do much legal work until it ends in early May.

Screenshot of Bachus & Schanker welcoming State Senator Morgan Carroll to the firm

But don’t think of her as a free rider. She’s doing what she can for her firm. She’s the Senate sponsor of House Bill 1136, which would greatly enlarge the damages that can be awarded to persons who win employment discrimination cases. Also going up, obviously, would be the contingent fees earned by the winning attorneys, typically 33 percent or so.

Bachus and Schanker lists employment law, including the Colorado Anti-Discrimination Act, among its specialties. Carroll also practices employment law, but says she doesn’t handle CADA cases and thus wouldn’t profit personally from the pending legislation.

The bill’s House sponsor is Rep. Claire Levy, D-Boulder, who is also a lawyer but doesn’t handle employment cases.

The two women have worked unusually hard to ensure the bill’s passage. Carroll signed up 17 cosponsors, enough to get it through the Senate, even before the bill was introduced Jan. 18. In the House, there were 31 representatives signed on prior to introduction, just two short of a majority.

The bill’s first hearing, in the House Judiciary Committee, will be Thursday (Feb 14).

Business interests, facing the inevitable, aren’t trying to defeat the bill so much as trying to scale down the maximum damage awards, which could easily bankrupt smaller firms. They are hoping for help from the governor’s office, John Hickenlooper once having been a small businessman. His office confirmed it’s keeping a close eye on the bill but wouldn’t speculate on whether he would sign it in its current form.

What the bill does is add compensatory and punitive damages to employment cases where intentional discrimination regarding color, age, religion or gender is proven, whether at the Colorado Civil Rights Commission or in state courts. The law already permits back pay and interest, plus reinstatement and other equitable relief.

Compensatory damages include emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life and other intangible inventions that plaintiff’s attorneys are very good at turning into cash.

Currently only employers with 15 or more workers are subject to extra damages, and they must be sued in federal court. H.B. 1136 would allow state courts, as well as the Colorado Civil Rights Commission, to award extra damages, no matter how large or small the firm is. It would also allow persons over 70 to sue for age discrimination, which they cannot now do.

Pushing the bill hardest is a subset of the trial lawyers called the Plaintiff Employment Lawyers Association.

The business community fears that the measure will encourage “forum shopping,” since attorneys will be able to sue in state courts unfamiliar with employment law if they feel they’re not getting what they want from federal courts who’ve learned how to distinguish real discrimination cases from those filed by disgruntled ex-employees seeking vengeance through a settlement.

“We’re not trying to protect small business from discrimination suits,” said Loren Furman of the Colorado Association of Commerce and Industry. “But we’re trying to say, don’t put them into bankruptcy.”

Something called “employment practices litigation insurance” is available to employers, but it’s expensive since it has to cover their own legal fees as well as whatever damages that must be paid. It also comes with a high deductible.

Let’s get back to the ethics of what bills a legislator can sponsor or vote for. Apparently Carroll could carry and vote for her bill even if she did practice CADA law because she and her firm aren’t the only ones who would benefit. The various rules and statues governing legislative ethics forbid you from a voting on a bill where you have a “personal or private interest,” but if you’re just one member in a larger class that might benefit, then it’s permissible.

Gradations can be tricky. Voting for a cut in the state income tax rate is fine because everyone would benefit. A teacher voting for more public school funds is also fine because there are thousands of teachers. But voting for a supplemental appropriation designed to pay only for a state contract with your manufacturing firm is not fine.

Where it gets tricky is when the class is relatively small. Possibly there would be no complaint if Carroll’s bill did benefit her because there are many other attorneys practicing employment law.

To be sure, there have been some delicate flowers in the past who would not even vote on such legislation, let alone sponsor it, because it bothered their consciences. They publicly acknowledged the conflict and took a pass on the vote.

As for legislative rules, they’re self-enforcing. No one is going to challenge your right to vote or not vote, and it’s not appealable, except perhaps to the court of public opinion.

Longtime Rocky Mountain News political columnist Peter Blake now writes Thursdays for CompleteColorado.com. Contact him at pblake0705@comcast.net You may re-publish his work at no charge and without further permission; please give full credit to Peter Blake and www.CompleteColorado.com

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