The Colorado Legislature has passed the Protecting Opportunities and Workers' Rights Act, Senate Bill 23-172 (POWR). Governor Jared Polis is expected to sign it. POWR makes significant changes to the law of workplace harassment and discrimination.
Proponents of POWR tried to pass similar bills in the last several legislative sessions. Despite the Democrats having a majority of both houses and a Democratic Governor, those efforts have failed, until now.
The original bill as introduced, like the versions introduced in previous sessions, was much different and included many provisions that would have been extremely onerous on employers, including the following:
- An employer would not have been able to assert a defense that an employee failed to avail themselvesof a policy prohibiting harassment unless it could show that it had an anti-harassment policy which has had "documented success" and that no employee had made a complaint of retaliation or harassment within the last 5 years.
- The definition of hostile work environment would have been expanded and extend to anything that "undermines a person's sense of well-being."
Bills introduced in previous sessions went even further, including provisions such as:
- Employees need not go through the charge and investigation process of the Colorado Civil Rights Division (CCRD) before filing suit, but rather could file a complaint in court 14 days after serving a written demand on the employer.
- Discrimination laws would apply to contractors and subcontractors.
After intense negotiation between business organizations and the proponents of POWR, amendments were adopted, which reduced the burden on employers. Still, POWR makes very significant changes to the law of workplace harassment and discrimination including:
- Eliminating the requirement of showing that harassment is severe or pervasive - the standard that has been applied in federal and state courts for many years. However, language was added which is similar to some of the standards adopted by the courts to protect employers from meritless claims. For example, a plaintiff will still have to prove that harassment was objectively and subjectively offensive.
- The nature of the work or the frequency with which harassment has occurred in the past is not relevant to whether the conduct is discriminatory.
- Marital status will be a protected class like race, religion, sex, and sexual orientation.
- Confidentiality agreements in discrimination and harassment settlements will be severely limited.
While the amendments removed the provisions which would have been the most difficult for employers in Colorado, POWR will pose significant challenges. Furthermore, the new and unique standards implemented by POWR will need to be applied by judges as cases are filed and make their way through the courts. Like any statute, POWR contains a certain amount of ambiguity which will not become clear until specific facts are presented to a judge and jury. Trial attorneys and judges will need to wrestle with such issues and the decisions made by trial court judges will be appealed to the Colorado Court of Appeals and, in some cases, the Colorado Supreme Court. Thus, workplace litigation will increase and employees and employers will have to adjust their behavior based on how the courts interpret POWR. Although POWR will become law once the Governor signs it, its full impact will not be understood for many years to come.
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