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24-34-601. Discrimination in places of public accommodation - definition

Text

(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 individuals 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.

History

History.
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.

Annotations

Cross references: For elections, see title 1; for peace officers and firefighters, see article 5 of title 29; for state engineer, see article 80 of title 37; for state chemist, see part 4 of article 1 of title 25; for offenses against government, see article 8 of title 18; for the Uniform Records Retention Act, see article 17 of title 6.

Cross references: For statutory provisions relating to the other principal departments of state government, see article 1 of title 8 (department of labor and employment); article 1 of title 17 (department of corrections); part 1 of article 2 of title 22 (department of education); article 1 of title 23 (department of higher education); article 21 of this title (department of state); part 1 of article 50 of this title (department of personnel); part 1 of article 1 of title 25 (department of public health and environment); article 1 of title 25.5 (department of health care policy and financing); article 1 of title 26 (department of human services); part 1 of article 1 of title 27 (department of human services); title 28 (department of military and veterans affairs); article 1 of title 35 (department of agriculture); and part 1 of article 1 of title 43 (department of transportation).

Editors note: (1) This part 6 was numbered as article 2 of chapter 25, C.R.S. 1963. Parts 3 to 8 of this article were repealed and reenacted in 1979, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this part 6 prior to 1979, consult the Colorado statutory research explanatory note and the table itemizing the replacement volumes and supplements to the original volume of C.R.S. 1973 beginning on page vii in the front of this volume. (2) The former provisions of this part 6 were relocated to part 7 of this article in 1979.Cross references: For definitions applicable to this part 6, see 24-34-301.Law reviews: For article, A Guide to the Lesser-Known Work Laws in Colorado, see 43 Colo. Law. 49 (May 2014); for article, Transgender Discrimination Law: Developments Under Colorado and Federal Law, see 45 Colo. Law. 51 (Sept. 2016); for article, CADA: The Intersection of LGBT Civil Rights and Religious Freedom, see 46 Colo. Law. 31 (Jan. 2017).

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.

ANNOTATION

Law reviews. For comment on Crosswaith v. Bergin, appearing below, see 7 Rocky Mt. L. Rev. 78 . 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).

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 states 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).

Advertisers 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 governments 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 speechs content, because the governments target is not the speechs expressive content but rather its tendency to cause the prohibited discrimination. 303 Creative LLC v. Elenis, 385 F. Supp. 3d 1147 (D. Colo. 2019).

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, revd on other grounds sub nom. Masterpiece Cakeshop Ltd. v. Colo. Civil Rights Commn, 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, revd on other grounds sub nom. Masterpiece Cakeshop Ltd. v. Colo. Civil Rights Commn, 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), affd, 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 Assn, 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 students right to exercise religion outside sections scope. A determination by the Colorado civil rights commission that a school hair regulation violates an Indian students 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 Assn, 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. Plaintiffs attention deficit disorder does not constitute a substantial limitation under subsection (2). Tesmer v. Colo. High Sch. Activities Assn, 140 P.3d 249 (Colo. App. 2006).