Changes Ahead for Colorado: New Law Changes Workplace Harassment and Discrimination Standards

Colorado recently passed a law that will substantially change workplace harassment and discrimination standards. This new legislation reflects the state’s commitment to addressing discriminatory or unfair employment practices; it includes protections for workers against discriminatory employment practices and provides funding for enforcement as well.

The Colorado Senate Bill 23-172 “Protecting Opportunities and Workers’ Rights Act (POWR)” has passed and is expected to be signed by the Governor.¹ Unless the Governor vetoes it or a referendum petition is filed against it, the law will go into effect in early August 2023. The Colorado legislature has seen similar bills in the last few legislative sessions, which actually were much more strict and would have placed significant burdens on employers. The new law was changed and amended prior to being re-introduced and passed during the latest session, but still has the potential to reshape key industry standards concerning harassment and discrimination.

POWR: Key Information About the Law

POWR has been in the works for several sessions. At first, the introduced bills included provisions that would have placed significant demands on employers, extended leniency to employees, expanded the definition of a hostile work environment, changed how discrimination laws would apply to contractors and subcontractors, and more. Bill sponsor Senator Faith Winter (D-Westminister) said the goal of the bill is to “change the culture,” as prior to the passage of POWR, “[Colorado] lack[ed] adequate policies to protect our workers and hold bad actors accountable.”

Even though some provisions were removed and others amended, the POWR still creates challenges and uncertainty for business owners. For example, the law will eliminate the requirement that an employee show that harassment was severe or pervasive; now, an employee will only need to prove that harassment was objectively and subjectively offensive. A woman shared her testimony on the bill to showcase one scenario in which this change was helpful. The woman experienced repeated grabbing around the waist by a cook at her job, but one week after she reported him to her manager she was let go for not “fitting in.” She was told she did not have legal recourse because her experience did not meet the state’s “severe or pervasive” standard to constitute unlawful harassment. Under POWR, however, she would have had a strong case.

Among other things, the law also adds protections from discriminatory or unfair employment practices for married individuals, changes the definition of “harass” or “harassment,” and repeals the current definition where it requires a hostile work environment. On the process side, it makes changes to charge/intake forms, investigations, and affirmative defense procedures, and limits confidentiality agreements in discrimination and harassment settlements.

The bill also appropriates over one million dollars from the general fund for the 2023-24 state fiscal year and allocates it to various departments and offices for implementation of the bill.

How Does POWR Affect Employers and Businesses?

For the last several sessions, including 2023, the introduction and passing of POWR was met with pushback from employers in the state. There were numerous organizations that registered against the bill. One of those was the Colorado Chamber of Commerce. CEO Loren Furman said that while she “strongly discourages” workplace harassment, she believes POWR will bring about “frivolous claims and expensive lawsuits.”²

A concern for employers considering the new standard for harassment is that it will prevent them from taking preemptive and/or corrective action. Moving away from the severe or pervasive threshold allows for the possibility of frivolous litigation and increases the likelihood that employers will spend more of their time and resources fighting baseless claims.

While there was significant pushback, there was also plenty of support from other organizations. One argument in support of the law is that it would encourage workers to speak up and report harassment when it occurs rather than tolerate it. Colorado is not the first state to reject the federal “severe or pervasive” standard for unlawful harassment; New York, California, and Maryland have done so already.

How can employers best prepare for the implementation of POWR?

Now that the law is passed, it is crucial for employers to ensure compliance and mitigate potential legal risks. Employers can conduct a comprehensive compliance audit of existing policies and procedures to evaluate areas that may require updates or revisions to comply with POWR. Any updates or revisions should be clearly communicated to employees to ensure awareness and understanding.

Offering training for managers, supervisors, and HR personnel on POWR and all its implications is a great opportunity and could decrease the likelihood of incurring potential consequences of non-compliance.

Conclusion

Colorado’s new law on protecting workers’ rights marks a significant change in employment law. Employers need to understand how these changes affect harassment and discrimination in the workplace. Due to some ambiguity in the law, expect activity in the Colorado courts. Workplace litigation is inevitable, and standards may become more clear as the courts interpret POWR.

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¹ Protecting Opportunities and Workers’ Rights Act | Colorado General Assembly

² Colorado Politics: Bill advances to lower threshold for workplace harassment in Colorado – Colorado Chamber of Commerce (cochamber.com)