Colorado Seeks to Redefine Harassment in Employment Discrimination Cases
AJ Peters, Of Counsel
On April 5, 2023, the Colorado Senate Judiciary Committee moved forward on a bill that could change the employment discrimination landscape dramatically. Senate Bill 23-172,[1] if signed into law, would enact the Protecting Opportunities and Workers’ Rights (POWR) Act, which, among other changes, would elevate harassment as a form of discrimination with the Colorado Civil Rights Division, while removing the need for a hostile work environment. This represents the latest attempt by proponents to have the POWR Act signed into law, as the Act has been introduced (and has failed) in prior legislative sessions.[2]
Redefining Harassment
Among changes that would be enacted through the POWR Act, “harassment” would become a basis for discrimination claims for charges filed with the Colorado Civil Rights Division (“CCRD”). In other words, charge and complaint forms filed with the CCRD would include “harassment” as a basis or description of the type of discriminatory or unfair labor practice that the charge addresses (similar to the option to choose or state “retaliation” on a charge or complaint form).
Harassment claims would also no longer require allegations of severe or pervasive conduct, which have been a cornerstone of hostile work environment discrimination claims nationwide for decades. Instead, the bill would redefine “harassment” and “harass” to mean engagement “in any unwelcome physical or verbal conduct or any written, pictorial or visual communication directed at an individual or group … because of [their] membership or perceived membership in a protected class” which, logically, could include single, isolated instances of harassment. Harassing conduct would be held to the standard of being “subjectively offensive to the individual alleging harassment and objectively offensive to a reasonable individual who is a member of the same protected class.”
Other Changes to Discrimination Law
Additional changes to discrimination law include added protections from discriminatory or unfair employment practices for individuals based on their marital status. The bill would also specify that discrimination may include an employer’s failure to initiate an investigation of complaints or failure to take prompt, reasonable, and remedial actions as a result. Finally, the bill seeks to limit the enforceability of nondisclosure provisions in employment agreements as well.
The POWR Act Moves Closer to Enactment
Senate Bill 23-172 is a version of a bill introduced to the Colorado legislature on February 27, 2023. Similar iterations of the bill have appeared in the past three years, but this proposed legislation has now moved on to the Senate Appropriations Committee for cost considerations. Critics of the new bill have warned of the risk of frivolous lawsuits and increased costs, both to businesses and state agencies, if such legislative amendments take effect.
Campbell Litigation will continue to monitor the status and progress of Senate Bill 23-172 and the POWR Act, and remains available to assist employers with any questions relating to workplace discrimination or harassment.
[1] The current version of the bill may be found here: https://leg.colorado.gov/bills/sb23-172.
[2] Campbell Litigation previously discussed the POWR Act in the spring of 2022, when the previous version of the bill died in the General Assembly, see https://www.rockymountainemployersblog.com/blog/2022/4/14/proponents-to-remove-the-severe-or-pervasive-standard-from-colorados-workplace-harassment-reform-bill-withdraw-proposed-legislation.