The 2019 Colorado law aimed at rooting out pay discrimination on the basis of sex does not require a plaintiff to allege their employer retaliated against them for sex- or gender-related reasons, the state’s second-highest court decided on Thursday.

Lawmakers enacted the Equal Pay for Equal Work Act with a stated intent to “close the pay gap in Colorado and ensure that employees with similar job duties are paid the same wage rate regardless of sex, or sex plus another protected status.”

To that end, the law empowers a worker to sue for alleged pay-based sex discrimination. It also forbids employers from asking for a prospective employee’s wage rate history, prohibiting an employee from disclosing their pay, and retaliating against someone who inquired about or discussed their wages.

In 2023, Emily Camp Verheggen sued Adams County for allegedly underpaying her for years in her various positions with the county’s department of human services. She alleged that for more than a decade, her employer required her to work 76-hour weeks, but only paid her for 40. Her attorney sent a demand for more than $745,000 in back pay.

Verheggen also alleged that after she filed her lawsuit, the defendants reprimanded and suspended her without pay for “unprofessional and disrespectful behavior.”

Among her claims, Verheggen argued that her employer violated the Equal Pay for Equal Work Act by retaliating against her after she engaged in an activity the law protected: raising unfair wage practices and pursuing a lawsuit over her pay.

Last July, District Court Judge Toni J. Wehman dismissed all of Verheggen’s claims. For the alleged violations of the equal pay law, Wehman noted its “central provision” was a prohibition on sex-based pay discrimination. In contrast, she viewed Verheggen’s allegations as revolving solely around her pursuit of back pay.

“Plaintiff’s ‘protected activities’ do not constitute the protected ‘discussion of wages’ within the intended meaning,” Wehman wrote. “Protecting backpay discussions was not the wrongful conduct that the Legislature was intending to address.”

She added that Verheggen needed to allege that she suffered “a wage disparity due to her identified gender, and that she suffered an adverse action due to reporting such gender discrimination.”

The legislature’s goal “could be undermined or diluted when misapplied to non-gender-based discrimination,” Wehman concluded. “The Court finds it is important to uphold not only the protections intended by these statutes but also to prevent their dilution through misuse or out-of-context application.”

Verheggen appealed Wehman’s dismissal of her claims related to the equal pay law, arguing that the portion of the law forbidding retaliation for wage-related discussions did not specify that gender or sex be a factor.

“Ms. Verheggen precisely made such inquiries,” wrote Verheggen’s lawyers. “And the retaliation she experienced falls just as squarely within the conduct the statute prohibits: shortly after making those protected inquiries, she was ‘disciplined,’ ‘coerced,’ ‘intimidated,’ and ‘interfere(d) with’ when she was issued a fabricated reprimand and suspension, escorted out of the office, barred from working, and denied her pay.”

During oral arguments to a three-judge Court of Appeals panel, Judge Karl L. Schock worried about Wehman’s narrow view of the law.

“The whole point of the statutes is so you can share with whoever you want for whatever reason you want and talk about whatever you want,” he said. “Because if everybody knows how much everybody gets paid, you might realize that there’s gender pay discrimination that you had no idea was there. And instead, if you need to have some gender-based suspicion first, doesn’t that undermine the whole point?”

Ultimately, the panel agreed that Verheggen could bring a retaliation claim without alleging gender or sex discrimination was a factor.

“Open discussion among employees about wage rates — regardless of whether those discussions pertain to gender-based pay disparities and regardless of whether any gender-based discrimination occurred — promotes wage transparency and helps uncover discriminatory wage practices,” wrote Judge Katharine E. Lum in the July 23 opinion. “The statutes’ prohibitions on retaliating against employees for inquiring about or discussing their wages furthers that purpose.”

She added that employers can violate the portion of the law forbidding sex-based pay disparities and the portion prohibiting retaliation against employees who speak about their wages, but nothing in the retaliation provision requires allegations of sex-based discrimination.

The case is Verheggen v. Adams County Department of Human Services et al.