An incentive to sue?

Foes: Civil rights code update would lead to frivolous lawsuits

Peter Marcus, DDN Staff Writer

Monday, February 2, 2009

Small businesses would see an increase in frivolous lawsuits if lawmakers back legislation that would conform the state’s civil rights code to federal law, according to a group opposed to “abusive lawsuits.”

The Colorado Civil Justice League is concerned about an amendment Sen. Morgan Carroll, D-Aurora, has proposed for a bill that would extend the sunset date for the Colorado Civil Rights Commission. The amendment would conform state job discrimination code to federal law, according to Carroll.

But opponents say the amendment would “exacerbate economic difficulties for businesses” by allowing employees to sue on the state level for compensation for pain and suffering, punitive damages and attorney fees. State law currently allows employees to file job discrimination suits for compensatory damages, or damages that would make the plaintiff “whole.” An example would be if an employee loses his or her job and it is determined that the firing was the result of discrimination, then that person could sue for damages such as lost wages.

Citizens are able to choose to sue on either the state or federal level.

Kelly Maher, with the CCJL, said if lawmakers back Carroll’s amendment, businesses would see an increase in employment discrimination lawsuits on the state level because there would be a greater incentive and be more profitable to sue.

“In these economic times, when jobs are so tight, what we don’t want is to be creating a situation where the cost of hiring additional people, or really the risk of hiring additional people, is bad for employers,” she said. Opponents argue that small business owners — and larger businesses as well — would be forced to settle in order to avoid costly legal fees, whether there was an instance of discrimination or not.

“Expanding the potential for larger damages and exposing small business to these lawsuits in Colorado state courts will also cause further delays and greater costs on Colorado’s already over-burdened court system,” continued Maher, who added that the national business community would see no incentive to expanding their businesses to Colorado.

But Carroll points out that there are many checks and balances in place to make sure that frivolous lawsuits don’t take place:

• A screening process takes place on both the state and federal levels to ensure probable cause.

• The burden of proof falls on the plaintiff’s shoulders.

• Attorneys can be held personally responsible if they take on a lawsuit determined to be frivolous.

• A judge can determine a case to be frivolous and toss the complaint.

• A remitter can be filed after judgment to reduce payment awarded to the plaintiff if the jury made a poor decision.

In the end, Carroll argues that businesses should have nothing to fear if they simply don’t discriminate against any employees.

“I have no interest in one of these people seeing a court room,” she said. “I just hope they don’t violate anyone’s civil rights, then they won’t have to.”

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