Colo. High Court Recognizes Self-Defense Public Policy Exception to At-Will Employment

Quick Hits

• The Colorado Supreme Court ruled that employees may bring wrongful termination claims if fired for acting in self-defense, even if their lawful exercise of the right to self-defense violates employer policies prohibiting confrontations.
• The court identified a public-policy exception to at-will employment, emphasizing that termination cannot penalize employees for exercising their statutory and constitutional right of self-defense.
• The decision highlights potential wrongful termination liability for employers if they discharge employees for lawful actions taken in self-defense in the workplace.

Answering a certified question from the U.S. District Court for the District of Colorado, the Colorado Supreme Court issued a landmark 5–2 ruling, holding that the right to self-defense, as expressed by both statute and the Colorado Constitution, supports a public-policy exception to the doctrine of at-will employment.

The certified question stemmed from a wrongful termination lawsuit filed by a convenience store employee after she was discharged following her response to an alleged armed robbery. The certified question was:

Does Colorado law recognize a public-policy exception to the at-will employment doctrine that allows an employee to bring a wrongful termination claim in the event the employee is terminated for actions taken in self-defense?

The store’s policy prohibited employees from confronting shoplifters, though the employee claimed she had acted in self-defense.

Public-Policy Exception to At-Will Employment

While the doctrine of at-will employment generally allows employers and employees to terminate their employment relationship at any time, the Colorado Supreme Court has recognized a public-policy exception, whereby employers are prohibited from discharging employees for reasons that would be “detrimental to the public good.”

The Colorado high court pointed to its prior precedent and its four-part test for determining whether an at-will employee has established that a discharge violated public policy by showing:

(1) that the employer directed the employee to perform an illegal act as part of the employee’s work related duties or prohibited the employee from performing a public duty or exercising an important job-related right or privilege;

(2) that the action directed by the employer would violate a specific statute relating to the public health, safety, or welfare, or would undermine a clearly expressed public policy relating to the employee’s basic responsibility as a citizen or the employee’s right or privilege as a worker; …

(3) that the employee was terminated as the result of refusing to perform the act directed by the employer[; and] …

(4) that the employer was aware, or reasonably should have been aware, that the employee’s refusal to comply with the employer’s order or directive was based on the employee’s reasonable belief that the action ordered by the employer was illegal, contrary to clearly expressed statutory policy relating to the employee’s duty as a citizen, or violative of the employee’s legal right or privilege as a worker.

The Colorado high court found that both section 18-1-704 of the Colorado Revised Statutes and article II, section 3 of the Colorado Constitution establish a right to self-defense. Reasoning that the right to self-defense is “an essential, inalienable right guaranteed to all people,” the court found that employees may not be prohibited from defending themselves at work. The court thus concluded that the right to self-defense “is job-related insofar as the need to exercise the right to defend oneself from an unprovoked attack can occur anywhere, including at work.”

Self-Defense Can Apply in the Workplace

The court answered the certified question in the affirmative: Colorado law recognizes a public-policy exception to the at-will employment doctrine that allows an employee to bring a wrongful termination claim in the event the employee is terminated for actions taken in self-defense.

The court’s majority essentially viewed the question as whether an employee must choose between his or her job and following the employer’s policies, or between the job and exercising a public right of self-defense. The court stated, “[A]n employer may not use termination to penalize an employee for exercising a constitutional or statutory right that reflects an important, clearly expressed public policy that affects the public.” The court noted that “this does not mean that an employer may not place reasonable limitations on these broader, societal rights to maintain the efficiency, safety, and stability of a workplace.”

Still, the court noted that it had not decided whether the convenience store’s policy barred employees from acting in self-defense or whether it simply prohibited employees from confronting shoplifters. Further, the court did not determine whether the employee had lawfully acted in self-defense.

The Dissent

Two justices dissented, reasoning that the Colorado Constitution restrained only government action and that the majority’s ruling was divorced from the facts of the case, which, they found, suggested that the convenience store employee had done more than act in self-defense and had attempted to stop a shoplifter. They criticized the majority for holding that a constitutional protection against state action could restrict a private employer from lawfully discharging an at-will employee for conduct that violated the employer’s policies. The dissent expressed concern that the court had equated a “job-related right,” as stated in precedent, with a more generic right guaranteed to “everyone.”

Key Takeaways

The Colorado Supreme Court’s ruling is a significant development for employers with operations in the state. The decision establishes that employers may face wrongful termination liability if they discharge an employee for lawfully exercising the right to self-defense in response to an unprovoked attack at work.

However, the decision indicates that the right to self-defense is “narrow,” applying “only when an employee lawfully exercises the right in response to an unprovoked attack at work,” and that there are bounds on what actions constitute lawful self-defense under the circumstances. The court noted that the ruling “does not mean that an employer may not place reasonable limitations on these broader, societal rights to maintain the efficiency, safety, and stability of a workplace.”

This ruling thus suggests that employers may still be able to enforce properly tailored workplace “no confrontation” or de-escalation policies in certain circumstances. Indeed, the Colorado Supreme Court’s ruling did not analyze the specific facts of the underlying case, determine whether the employee had lawfully acted in self-defense, or find that the employee had violated the employer’s no-confrontation policy.

In light of the decision, Colorado employers may want to review their workplace policies and examine the extent to which they might inadvertently infringe employees’ right to self-defense.

Ogletree Deakins’ Denver office will continue to monitor developments and will provide updates on the Colorado, Employment Law, Retail, Workplace Safety and Health, and Workplace Violence Prevention blogs as additional information becomes available.

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