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Colorado joins California, New York, New Jersey and Virginia by banning discrimination on the basis of hairstyles

Colorado will be adding to the list of protected classes against which discrimination is prohibited “hair texture, hair type, or a protective hairstyle that is commonly or historically associated with race.” Because the current legislative session has been extended due to the on-going coronavirus events, we do not know the precise date when this new law will take effect. It has been signed by Governor Polis. By its own terms, this new law will “effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 5, 2020, if adjournment sine die is on May 6, 2020)” unless extended by a referendum petition (parenthetical in original). Employers should consider revising their EEO policies and handbooks to add this to the list of protected classes against which they will not permit discrimination.

Tenth Circuit holds that failure to exhaust is an affirmative defense not a jurisdictional defect in Title VII claims

The Tenth Circuit has reversed longstanding precedent to, now, hold that a plaintiff’s failure to exhaust the administrative charge requirements of a Title VII claim is a mere affirmative defense, not a jurisdictional defect. What’s the difference? The courts have jurisdiction to hear the circumstances surrounding the failure to exhaust when it is asserted as an affirmative defense. In this case, the plaintiffs apparently had failed to exhaust; however, they pointed to a prior stipulation by the defendant in which the company had agreed that they had in fact exhausted. The trial court had originally ruled, in line with the Tenth Circuit’s longstanding precedent, that a failure to exhaust is jurisdictional and that it, therefore, lacked jurisdiction over the claims and could not, as a result, entertain argument over the stipulation. The Tenth Circuit remanded, holding that the failure to exhaust was merely an affirmative defense, and as such the trial court is authorized to consider the stipulation.

Source: Lincoln v. BNSF Railway Co., case no. 17-3120 (10th Cir. 8/17/18).