Colorado Supreme Court Case Suggests that Constitutional Protections May Apply to Private Employer Workplaces
July 8, 2026
By: Colin A. Walker
In Moreno v. Circle K Stores, 2026 CO 46, the Colorado Supreme Court considered whether terminating an employee for defending herself supported a wrongful discharge in violation of public policy claim (“public policy claim”).
The public policy claim, which has existed in Colorado, and in most states, for many years provides that it is unlawful for an employer to terminate an employee for refusing to engage in unlawful conduct requested by the employer, performing a public duty, or for exercising an important job-related right or privilege. Colorado courts have held that such things as filing a worker’s comp claim and whistleblowing support public policy claims. Importantly, the right exercised by the employee must be “clearly expressed.”
In this case, the employee, a convenience store clerk, allegedly defended herself when someone tried to rob the store. The employer didn’t see it that way, contending that she had tried to stop the robber from completing the robbery. This, the employer argued, violated its policy against employees trying to intervene to prevent a crime.
The employee argued that, under the Colorado Constitution and a Colorado statute, she had a right to defend herself. This, she argued, was an important work-related right, which was clearly established by law, and, therefore, supported her public policy claim. The employer argued that the Constitution only applies to the government, not to private parties. Therefore, the employer argued, it could not support a public policy claim.
In a 5-2 split decision, the Colorado Supreme Court held that the Colorado Constitution clearly established the right on an employee to “act in reasonable self-defense when they have reasonable grounds to believe they are in imminent danger of death or great bodily injury or of becoming a victim of certain other crimes.” The Court held that this right could support a public policy claim because the Constitution clearly expresses a public policy favoring the right to self-defense, self-defense impacts the public and is a public right, and the provisions protect employees from being forced to choose between their safety and employment.
The majority opinion acknowledged that constitutions only apply to governments, not private actors, but held that they could support public policy claims. The majority relied on statements in previous decisions that constitutional provisions could support public policy claims and distinguished two cases which held to the contrary.
The two dissenting justices sharply criticized the majority, arguing that “a constraint on governmental prosecutorial power does not make the right to self-defense job related, nor does it somehow impose constraints on employers in the context of an at-will employment relationship.” The dissent argued that the majority opinion essentially opens the door to constitutional protections supporting public policy claims and expands the public policy claim inappropriately, leaving employers uncertain of what they can do and rendering workplaces less safe, not safer.
This decision calls into a question whether other constitutional provisions, including the U.S. Constitution, could be applied to private parties such as private employers. In particular, the Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures. This has been applied to governmental employees to prohibit a public employer from searching employees’ property for such things as illegal drugs and other evidence of employee misconduct without a search warrant. But, it has never been applied to private employers which, generally, can search employee lockers, backpacks, desks, etc. for evidence of misconduct. However, this case suggests that such constitutional provisions could be used to support a public policy claim against private employers. The Colorado Supreme Court specifically held that its decision here was “narrow” declined to opine on whether other constitutional provisions could support a public policy claim. It is likely that attorneys representing employees will argue that they do. Employers should pay close attention to developments in this area and adjust their policies and practices accordingly, consulting with competent employment counsel where appropriate.