Under Colorado law, discrimination and retaliation by landlords are illegal. But are they something that can prevent a landlord from carrying out an eviction?

On Monday, the state Supreme Court agreed to review a case out of Adams County in which a tenant claims her landlord moved to evict her after she rejected his sexual advances. A trial judge decided she could not fend off the legal action by alleging retaliation and sexual harassment were behind the eviction.

“This decision puts Colorado at odds with nearly all state courts who have ruled on this question and have held that discrimination and retaliation under fair housing laws are affirmative defenses to an eviction,” wrote attorney Spencer Bailey on behalf of Claire E. Miller.

A decision in Miller’s favor could have significant effects on eviction filings in Colorado, which stood at 37,000 in 2022.

Miller rented a home from Jesse A. Amos. Amos moved to evict her last year, alleging she failed to abide by their agreement to clean the home in lieu of paying rent. He also accused Miller of being “aggressive” toward him.

In response, Miller alleged Amos was ejecting her because she rebuffed his sexual harassment. The case went to trial in Adams County Court, where a judge concluded the prohibitions on retaliation and discrimination in the Colorado Fair Housing Act could not serve as a defense against eviction.

Miller appealed, and District Court Judge Teri L. Vasquez acknowledged there was no precedent in Colorado to guide her. She noted a landlord’s retaliation based on complaints made about the conditions of a housing unit can bar an eviction. Retaliation rooted in sexual harassment, however, did not qualify.

Vasquez added she was “not indifferent” to the concern that landlords would be free to evict tenants because of sex, race, disability or other protected traits. But the fair housing act “specifically provides an affirmative remedy in the event a landlord engages in such conduct,” she explained, referring to a separate lawsuit.

Miller asked the Supreme Court to hear her case and received the backing of multiple civil rights, legal aid and victim advocacy organizations. They argued a separate housing discrimination lawsuit, brought by a tenant who is already unable to pay rent, is unrealistic and comes too late. The sensible alternative, they contended, is to use a landlord’s retaliation to halt the eviction in the first place.

“To keep a sexual harasser from exploiting the eviction process to further harm victims, tenants must have the ability to assert an affirmative defense in an eviction proceeding,” wrote attorneys for the National Alliance to End Sexual Violence, National Fair Housing Alliance, National Women’s Law Center and other groups.

Miller pointed out that courts in at least 15 states and the District of Columbia have issued rulings that enable tenants to combat an eviction by showing a landlord acted out of discrimination or retaliation. Only two states, she alleged, have taken the opposite path.

In one of the early cases allowing for an affirmative defense to eviction, the Washington Court of Appeals agreed in 2002 that a tenant could invoke disability discrimination by her landlord to try and defeat the eviction attempt.

“Where a tenant does not pay the agreed rent, the tenant’s defense must constitute an excuse,” the court wrote. “While discrimination is extremely unlikely to be such a defense, it is not a logical impossibility.”

The case is Miller v. Amos. Chief Justice Brian D. Boatright did not participate in the Supreme Court’s decision to hear the appeal.