Currently, Colorado law allows the award of a defendant’s attorney fees and costs only where a plaintiff brings a discrimination action that the court finds “frivolous, groundless or vexatious.” See Colo. Rev. Stat. § 24-34-405(b). This is a high standard for an employer to meet. Colorado House Bill 16-1299 proposes lowering the bar to allow an award of attorney fees and costs to a prevailing defendant in employment discrimination cases where “the plaintiff pursues a claim that lacks substantial merit because it is pursued in bad faith or when a reasonable person would not believe the claim is likely to succeed.”
Introduced in the House on February 26, HB 16-1299 is currently before the House Committee on State, Veterans, and Military Affairs. Were the bill to become law, it would level the playing field, somewhat, for employers. Today, defendants rarely are awarded fees. Employers are faced with the choice of incurring un-reimbursable attorney fees and costs or settling for something less than the cost of a defense. With the amendment of C.R.S. § 24-34-405, defending against a claim of discrimination that lacks substantial merit would be a more palatable option for employers, because the employee would be exposed to the risk of being responsible for the fees and costs of defense. Not only would this amendment discourage weak claims of discrimination, it has the potential to reduce the cost of settlement, as plaintiffs and their attorneys are required to actually count the cost of bringing the lawsuit.