The Colorado Supreme Court announced its opinion on December 21, 2020, in a long-anticipated case involving the interplay between the Colorado Anti-Discrimination Act (CADA), section 24-34-405, C.R.S. (2020) and the Colorado Governmental Immunity Act (CGIA), section 24-10-106, C.R.S. (2020) in Elder v. Williams, 2020 CO 88. The syllabus to the court’s 4-3 opinion states:
“This case principally requires the supreme court to decide whether claims against a governmental entity for compensatory relief under the Colorado Anti-Discrimination Act (“CADA”), section 24-34-405, C.R.S. (2020), are barred by operation of the Colorado Governmental Immunity Act (“CGIA”), section 24-10-106, C.R.S. (2020). The court is also asked to decide whether subsection 24-34-405(8)(g) of CADA, which allows for compensatory damages against “the state,” should be read to include political subdivisions of the state of Colorado and whether front pay is compensatory in nature, lies in tort, and is therefore barred by the CGIA. The court now concludes that (1) claims for compensatory relief under CADA are not claims for “injuries which lie in tort or could lie in tort” for purposes of the CGIA and therefore public entities are not immune from CADA claims under the CGIA; (2) “the state,” as used in subsection 24-34-405(8)(g), includes political subdivisions of the state and thus political subdivisions are not immune from claims for compensatory damages based on intentional unfair or discriminatory employment practices; and (3) front pay is equitable and not compensatory in nature under CADA, and age discrimination and retaliation claims seeking front pay do not lie and could not lie in tort for CGIA purposes.”
The dissent argued that the damages remedies afforded by CADA are remedies that “lie in tort or could lie in tort,” bringing CADA claims within the protective orbit of the CGIA. The General Assembly could, of course, have foreseen this potential issue when it enacted CADA, but remained silent about whether CGIA would apply to CADA claims.
