Military Status Discrimination Laws in Colorado

The Uniformed Services Employment and Reemployment Rights Act (USERRA), codified at 38 U.S.C. § 4301 et seq., is the primary federal statute prohibiting military discrimination. USERRA applies to all employers with federal contracts, all private employers, state and local government employers, and the federal government itself. The statute protects employees and job applicants who perform uniformed service, including active duty military, National Guard, reserves, and certain other federal service.

USERRA prohibits discrimination and retaliation based on military service or status. Employers cannot deny employment, promotion, compensation, or other benefits based on military service. The law also provides robust reemployment rights—when a service member returns from military duty of up to five years, the employer must restore the employee to the same position or an equivalent position with equivalent pay, benefits, and seniority.

The law covers both ongoing employment discrimination and failure to reemploy service members returning from duty. Enforcement occurs through the U.S. Department of Labor's Veterans' Employment and Training Service (VETS). A service member or veteran has three years from the date of the alleged violation to file an administrative complaint with VETS. If VETS cannot resolve the matter, the claimant may file suit in federal district court without exhausting administrative remedies first.

Remedies under USERRA include reinstatement to the original or equivalent position, back pay with interest, restoration of seniority and benefits, and actual damages. In cases involving willful violation, liquidated damages equal to the amount of unpaid wages and lost benefits are available, plus reasonable attorney fees and court costs.

Colorado Revised Statutes § 24-34-402 provides state-level protection against employment discrimination based on military status. This statute applies to all Colorado employers without regard to size or employee count, including private employers, state and local government entities, and quasi-public organizations. "Military status" under Colorado law includes current service, prior service as a veteran, membership in the National Guard, reserves, or other uniformed service.

Colorado's statute is substantively similar to federal USERRA but provides an additional independent cause of action under state law. While USERRA sets the federal floor for reemployment rights (up to five years of service), Colorado law provides broader protection by prohibiting discrimination based on military status in all employment decisions. This means a service member in Colorado has two separate legal frameworks—federal and state—providing overlapping but complementary protections.

Colorado Revised Statutes § 24-34-402.3 specifically protects Colorado residents called to active duty by the state or federal government, requiring that employers maintain group health insurance coverage and allow employees to return to employment upon completion of duty. This mirrors USERRA's reemployment guarantee but applies distinctly under state law.

Under Colorado law, employers are prohibited from discriminating against or retaliating against employees and applicants based on military status in hiring, compensation, advancement, job training, working conditions, and termination. The statute uses language prohibiting actions "based in whole or in part on the basis of" military status, indicating strict scrutiny of employer motives.

Colorado law provides concurrent state administrative remedies through the Colorado Civil Rights Division and the federal VETS process. An individual may file a charge with the Colorado Civil Rights Division alleging discrimination under state law. Colorado's remedies for violations include front pay, back pay, compensatory damages for emotional distress and reputational harm, punitive damages in cases of willful discrimination, restoration of seniority and benefits, and reasonable attorney fees. The Colorado Civil Rights Division may also issue cease-and-desist orders and require affirmative steps to remedy discrimination.

Military status discrimination law contains important limitations and exceptions that employers may raise in defense. First, USERRA and Colorado law do not require employers to employ persons who would not otherwise have been employed. An employer may argue that the individual was not hired or was terminated for a legitimate, non-discriminatory reason unrelated to military status. However, military status cannot be considered as a factor or combined with other factors to justify an adverse employment action.

Second, employers may be relieved of reemployment obligations if they can demonstrate that the circumstances have so changed that reemployment would be impossible or would impose an undue hardship on the business. The hardship exception is narrowly construed and requires clear and convincing evidence that the business would suffer substantial and unavoidable economic loss. Simply demonstrating that hiring someone else or rehiring the service member would be inconvenient does not meet this standard.

Third, the law does not apply to independent contractors or certain limited classifications. Only true employees covered by USERRA and Colorado employment law receive protection. Federal contractors have heightened obligations under affirmative action regulations (Executive Order 11246 and VEVRAA), but these do not create independent private causes of action—they operate through federal contracting compliance reviews.

Fourth, conduct-based discipline is not per se prohibited. An employer may discipline or terminate a service member for legitimate job-related misconduct, poor performance, or violation of work rules, provided the decision is not based on or motivated by military status. The burden shifts to the employer to demonstrate by clear and convincing evidence that the adverse action would have occurred regardless of military service.

Fifth, USERRA contains a carve-out for employers with fewer than a specified number of employees (the federal standard applies regardless of size), but Colorado law applies to all employers. Union or collective bargaining status does not exempt employers from military status discrimination obligations, though union contracts may provide additional protections.

Sixth, employees who exceed the five-year reemployment window lose some but not all protections. Service beyond five years is not protected for reemployment purposes, but ongoing discrimination protections remain applicable.

Step 1: Document and Preserve Evidence. Immediately begin documenting all relevant incidents, communications, and decisions. Keep copies of job postings, your resume, offer letters, performance reviews, emails from supervisors, and any documents indicating your military status or service plans. Record dates, times, and witnesses present for any discriminatory statements or adverse employment actions. Save text messages, Slack communications, and any written communications from your employer. Create a personal timeline noting when you disclosed your military status, when the adverse action occurred, and any changes in job conditions or responsibilities. Document your job performance metrics, any commendations, and prior promotions or raises to establish your employment trajectory.

Step 2: Internal Complaint Process. Before filing externally, consider initiating an internal complaint through your employer's human resources department or complaint mechanism if one exists. Request a meeting with HR and present your concerns in writing, specifically stating that you believe discrimination based on military status has occurred. Reference the specific statute—either USERRA or Colorado Revised Statutes § 24-34-402. Keep a copy of any complaint you submit and document the date and person to whom you delivered it. Request written acknowledgment of receipt. This step creates an internal record and sometimes prompts corrective action, though it does not toll the filing deadline with external agencies. However, pursuing internal remedies demonstrates good faith and may strengthen your case if you eventually litigate. Do not delay external filing while waiting for internal resolution—proceed with Step 3 concurrent with internal processes.

Step 3: File with the Appropriate Agency. You have two primary federal options: the U.S. Department of Labor's Veterans' Employment and Training Service (VETS) or the U.S. District Court directly. There is no requirement to exhaust administrative remedies before filing suit in federal court, but filing an administrative complaint with VETS first can facilitate investigation and negotiated resolution. To file a USERRA complaint with VETS, submit the complaint to the Regional Veterans' Employment and Training Officer (RVET) for your region. In Colorado, contact the VETS office serving your jurisdiction. The complaint must be submitted within three years of the alleged violation. You can file online through the VETS website (www.dol.gov/agencies/vets), by mail, or in person. Your complaint should include your name and contact information, your employer's name and address, dates of the alleged violation, a description of the adverse employment action, when and how you disclosed military status, and any witnesses.

Alternatively or concurrently, file a complaint with the Colorado Civil Rights Division under state law. The Division accepts complaints alleging discrimination based on military status under C.R.S. § 24-34-402. Contact the Colorado Civil Rights Division at 1-800-262-4845 or visit their website at https://cdps.colorado.gov/civil-rights. Provide detailed information about the discrimination, including dates, involved parties, and witnesses. The state proceeding operates parallel to the federal USERRA process and provides an alternative remedy framework.

Step 4: Investigation and Resolution Process. Upon receipt of your VETS complaint, the Regional VETS office will conduct an investigation. This typically involves contacting your employer to request an explanation, reviewing documents, and interviewing witnesses. You should expect the investigation to take 30-90 days, though complex cases may take longer. The VETS investigator will request documents from your employer regarding hiring practices, job descriptions, performance records, and communications. Respond promptly to requests from the VETS office and provide any additional evidence supporting your claim. If the VETS office finds reasonable cause to believe discrimination occurred, it will attempt conciliation. This involves bringing the parties together to negotiate a settlement. If conciliation succeeds, you may receive back pay, reinstatement, damages, and attorney fees without litigation. If conciliation fails, the VETS office issues a determination letter, and you retain the right to file suit in federal district court within two years.

Step 5: Consult an Attorney and Prepare for Litigation if Necessary. Given the technical requirements and strict deadlines, consult an employment law attorney as soon as possible, ideally before filing your complaint. An attorney can help you identify all potential claims, gather evidence, and navigate administrative procedures. If you cannot afford private counsel, contact the Colorado Legal Services office (1-888-837-6338) or the Veterans Legal Services program offered by several nonprofits in Colorado. Your attorney can advise on whether settlement is appropriate or litigation should proceed. If the matter proceeds to federal district court, your attorney will file a complaint alleging violations of USERRA and Colorado law, and both sides will engage in discovery—exchange of documents and depositions. Litigation typically takes 12-24 months before trial. If you prevail, you may recover back pay, front pay, damages for emotional distress, punitive damages, reinstatement or compensation in lieu, restoration of seniority and benefits, and attorney fees and costs.