(1) As used in this part 6, "place of public accommodation" means any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering wholesale or retail sales to the public; any place to eat, drink, sleep, or rest, or any combination thereof; any sporting or recreational area and facility; any public transportation facility; a barber shop, bathhouse, swimming pool, bath, steam or massage parlor, gymnasium, or other establishment conducted to serve the health, appearance, or physical condition of a person; a campsite or trailer camp; a dispensary, clinic, hospital, convalescent home, or other institution for the sick, ailing, aged, or infirm; a mortuary, undertaking parlor, or cemetery; an educational institution; or any public building, park, arena, theater, hall, auditorium, museum, library, exhibit, or public facility of any kind whether indoor or outdoor. "Place of public accommodation" shall not include a church, synagogue, mosque, or other place that is principally used for religious purposes.
(2) (a) It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or, directly or indirectly, to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual's patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.
(b) A claim brought pursuant to paragraph (a) of this subsection (2) that is based on disability is covered by the provisions of section 24-34-802.
(2.5) It is a discriminatory practice and unlawful for any person to discriminate against any individual or group because such person or group has opposed any practice made a discriminatory practice by this part 6 or because such person or group has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing conducted pursuant to this part 6.
(3) Notwithstanding any other provisions of this section, it is not a discriminatory practice for a person to restrict admission to a place of public accommodation to individuals of one sex if such restriction has a bona fide relationship to the goods, services, facilities, privileges, advantages, or accommodations of such place of public accommodation.
Source: L. 79: Entire part R&RE, p. 937, 3, effective July 1. L. 89: (2.5) added, p. 1043, 11, effective July 1. L. 93: (2) amended, p. 1661, 65, effective July 1. L. 2008: (1) and (2) amended, p. 1596, 6, effective May 29. L. 2014: (2) amended, (SB 14-118), ch. 250, p. 978, 7, effective August 6.
Cross references: For the legislative declaration contained in the 2008 act amending subsections (1) and (2), see section 1 of chapter 341, Session Laws of Colorado 2008.
Subsection (2) is supported by an important, indeed, compelling state interest in discouraging discrimination against protected groups. 303 Creative LLC v. Elenis, 385 F. Supp. 3d 1147 (D. Colo. 2019).
It is also rationally related to the state's interest in discouraging discrimination in the provision of public accommodations and business services. 303 Creative LLC v. Elenis, 385 F. Supp. 3d 1147 (D. Colo. 2019).
Subsection (2) prohibits an advertiser from stating that she or he will not provide services to same-sex couples. 303 Creative LLC v. Elenis, 385 F. Supp. 3d 1147 (D. Colo. 2019).
Advertiser's statement expressing her intention to engage in discrimination on the basis of sexual orientation in the provision of public accommodations is a statement promoting an act that is illegal. The government's ability to regulate unlawful economic activity allows it to prohibit advertisements of this type, even if it must do so by defining the prohibited message based on its content. The government may prohibit speech that would violate duly enacted anti-discrimination laws, even if it does so by reference to the speech's content, because the government's target is not the speech's "expressive content" but rather its tendency to cause the prohibited discrimination. 303 Creative LLC v. Elenis, 385 F. Supp. 3d 1147 (D. Colo. 2019).
Law reviews. For comment on Crosswaith v. Bergin, appearing below, see 7 Rocky Mt. L. Rev. 78 (1934). For article, "Civil Rights in Colorado", see 46 Den. L.J. 181 (1969). For article, "Practicing Before the Colorado Civil Rights Commission", see 17 Colo. Law. 259 (1988). For comment, "New York State Club Association, Inc. v. City of New York: As 'Distinctly Private' is Defined, Women Gain Access", see 66 Den. U. L. Rev. 109 (1988).
Section is constitutional. Darius v. Apostolos, 68 Colo. 323, 190 P. 510 (1920); Crosswaith v. Bergin, 95 Colo. 241, 35 P.2d 848 (1934).
The United States supreme court has recognized that, in some cases, conduct cannot be divorced from status. This is so when the conduct is so closely correlated with the status that it is engaged in exclusively or predominantly by persons who have that particular status. The act of same-sex marriage is closely correlated to sexual orientation, because it is engaged in exclusively or predominantly by gays, lesbians, and bisexuals. Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, 370 P.3d 272, rev'd on other grounds sub nom. Masterpiece Cakeshop Ltd. v. Colo. Civil Rights Comm'n, __ U.S. __, 138 S. Ct. 1719, 201 L. Ed. 2d 35 (2018).
But for their sexual orientation, petitioners would not have sought to enter into a same-sex marriage, and therefore, the administrative law judge did not err when he found that respondents' refusal to create a wedding cake for petitioners was "because of" their sexual orientation, in violation of the Colorado anti-discrimination act and not, as respondents claim, because of petitioners' intended conduct -- to enter into a marriage with a same-sex partner. Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, 370 P.3d 272, rev'd on other grounds sub nom. Masterpiece Cakeshop Ltd. v. Colo. Civil Rights Comm'n, __ U.S. __, 138 S. Ct. 1719, 201 L. Ed. 2d 35 (2018).
Right of women to frequent saloons taken away by Denver city charter. If this section, when enacted, gave to women the right equally with men to frequent saloons, and if this right depended solely upon the underlying statutory provision, it was taken away by the general assembly when, at a later date, it adopted a charter for the city of Denver, whereby the authority was conferred upon the city to deprive women of the enjoyment of this so-called right. Adams v. Cronin, 29 Colo. 488, 69 P. 590 (1902), aff'd, 192 U.S. 108, 24 S. Ct. 219, 48 L. Ed. 365 (1904) (decided under former law).
This section applies to organizations that conduct activities in facilities, such as parks and sports fields, that are open to the public. Creek Red Nation, LLC v. Jeffco Midget Football Ass'n, 175 F. Supp. 3d 1290 (D. Colo. 2016).
Bootblacking stand is a place of public accommodation. Darius v. Apostolos, 68 Colo. 323, 190 P. 510 (1920).
Refusal of restaurant to serve a person because of his race is discrimination against which section is aimed. Crosswaith v. Bergin, 95 Colo. 241, 35 P.2d 848 (1934).
Determination that regulation violates student's right to exercise religion outside section's scope. A determination by the Colorado civil rights commission that a school hair regulation violates an Indian student's constitutional right to freely exercise his religion is outside the scope of subsection (2) and is an issue appropriately resolved in a court of law. Sch. Dist. No. 11-J v. Howell, 33 Colo. App. 57, 517 P.2d 422 (1973).
Disparity in the procedure for verifying students' religious beliefs constitutes discriminatory practice prohibited by this section. Sch. Dist. No. 11-J v. Howell, 33 Colo. App. 57, 517 P.2d 422 (1973).
Plaintiff must show that he or she would not have been denied full privileges of a place of public accommodation if it had not been for his or her disability. The plaintiff does not need to establish that the disability was the only cause for being denied full privileges of a place of public accommodation. Tesmer v. Colo. High Sch. Activities Ass'n, 140 P.3d 249 (Colo. App. 2006).
For an impairment to be considered a substantial limitation, it must prevent or severely restrict an individual from performing a major life activity and must be of a permanent or long-term nature. Plaintiff's attention deficit disorder does not constitute a substantial limitation under subsection (2). Tesmer v. Colo. High Sch. Activities Ass'n, 140 P.3d 249 (Colo. App. 2006).