From: mhr@hpuerca.atl.hp.com (Mike Reaser)
Subject: Re: Private antidiscrimination policies in CO (was Re: Attention...)
Date: Thu, 31 Dec 1992 16:04:30 GMT
Organization: a stone mountain of Kudzu

In <1992Dec31.002814.1979@netcom.com> solovay@netcom.com (Andrew Solovay) writes:

>In article <C03G46.4B4@hpuerca.atl.hp.com> mhr@hpuerca.atl.hp.com (Mike Reaser) writes:
>>In <1ht79qINN6dp@hp-col.col.hp.com> smithw@col.hp.com (Walter Smith) writes:
>>
>>>> BBC put it best:  all the Equal Opportunity policies in world are useless
>>>> if the _law_ doesn't allow you to use them.  And that's what Amendment 2
>>>> does.
>>
>>>You really think HP would fire you in violation of their own EE statement? 
>>
>>It's possible.  In Georgia, I could seek relief in the court system.
>>In Colorado I could not.

>I don't see how this follows from CO2. If FooWare has an
>anti-discrimination policy and they violate it, that's a breach
>of contract, and I don't see how CO2 would prevent you from suing
>successfully. Granted, CO2 prevents the law from *mandating*
>non-0discrimination; but if a company sets up such a policy
>voluntarily, they would be bound by it the same way they'd be
>bound by any other agreements.

>CO2 doesn't say anything about private antidiscrimination
>agreements; it only talks about antidiscrimination *laws*, which
>are government policies, not private ones.

But the text of the amendment states (with deletions for space) that

"Neither the State of Colorado, through any of its branches or 
departments, nor any of its agencies...shall enact, adopt or enforce
any statute, regulation, ordinance or policy whereby homosexual, lesbian or
bisexual orientation, conduct, practices or relationships shall
constitute or otherwise be the basis of, or entitle any person or class
of persons to have or claim any minority status...or claim of 
discrimination."

Since the courts are a branch of government, and my claim to the
breach of contract would involve a "claim of discrimination" based on
"homosexual orientation", _and_ I'd be asking the court to "enforce"
said contract, then per the amendment the claim (and any resultant 
lawsuit) would be found to be groundless.  Since the law _itself_ 
precludes me from making such a claim of discrimination, I would be
unable to claim "breach of contract", since the state of Colorado
does not allow enforcement of such clauses.

>Are their any lawyers out there who disagree? If so, what are my
>mistakes?

I'm not a lawyer, but that's how I read the amendment.  If there are
legal-types out there who could comment, I'd be most appreciative.

>Mind you, FooWare might be able to get away with discrimination
>in *hiring*, since it would be discriminating against people with
>whom it had made no agreement. But I don't see how it could
>*fire* someone, in violation of an anti-discrimination policy,
>without leaving itself open to a breach of contract/promise/
>whatever suit.

See above.  The suit would depend on a claim which the state
constitution explicitly disallows.

--
=======================================================================
 Mike Reaser, Hewlett-Packard N. Amer. Response Center - Atlanta
 Internet:  mhr@hpuerca.atl.hp.com
 NBCS: B5 f t w g+ k s              I barely speak for myself, so
 #include <standard.disclaimer>       don't make me speak for HP
=======================================================================