After several years and numerous amendments, the Colorado Legislature has passed the Protecting Opportunities and Workers’ Rights Act (SB23-172), otherwise known as the POWR Act. The new law is best known for redefining the standard employees must prove to establish workplace harassment claims under the Colorado Anti-Discrimination Act (CADA). But the POWR Act also makes several other key changes to Colorado anti-discrimination law of which employers should be aware, such as new requirements for nondisclosure agreements and recordkeeping, among others.
Lawmakers passed the POWR Act during Colorado’s recently completed 2023 legislative session. Governor Polis has until June 7, 2023, to sign or veto the measure. At this time, it’s unlikely he will veto the bill, which is anticipated to take effect in early August.
The biggest change in the POWR Act is the definition of workplace harassment. Under federal anti-discrimination laws, employees generally must prove, among other things, that the harassing behavior was “severe or pervasive.” The standard requires the employee to prove that the conduct altered the conditions of their working environment. The POWR Act, however, expressly rejects the “severe or pervasive” standard in favor of a new definition of workplace harassment. The definition essentially has five components:
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Engage in, or the act of engaging in, any unwelcome physical or verbal conduct or any written, pictorial, or visual communication;
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Directed at an individual or group of individuals;
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Because of that individual's or group's membership in, or perceived membership in, a protected class (such as sex, gender, race, religion, etc.);
The law is clear that the nature of the work or frequency with which harassment in the workplace occurred in the past is not relevant to determining whether a violation occurred.
Under the POWR Act, “petty slights, minor annoyances, and lack of good manners” are generally not actionable. But if, under the totality of the circumstances, the comments individually or in combination meet the harassment standard, these isolated incidents become actionable. The statute enumerates nine factors, including frequency, duration, location, nature of the comments, and number of individuals involved, to consider when determining whether these types of comments are actionable.
The POWR Act also provides employers with a narrow affirmative defense. If an employee proves supervisor harassment, employers can escape liability by proving, among other things, the existence of a harassment prevention program.
The new standard fundamentally changes workplace harassment law in Colorado. The practical implications of the POWR Act will remain uncertain until claims make their way through the legal system. In the interim, employers should maintain best practices, which include the following:
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Providing comprehensive harassment prevention training for both supervisors and non-supervisory employees
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Remaining vigilant for any potentially problematic behavior
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Treating allegations of harassment with utmost seriousness by conducting thorough investigations
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Implementing appropriate remedial actions when necessary
Beyond reshaping workplace harassment law in Colorado, the POWR Act imposes new requirements on the terms of nondisclosure agreements pertaining to unfair or discriminatory employment practices. If a nondisclosure provision fails to meet these requirements, except in limited circumstances, employers risk having the provision invalidated and facing steep monetary costs.
Under the law, not all nondisclosure agreements are regulated — the definition limits “nondisclosure provisions” to those entered into on or after the law’s effective date and those that limit employees’ or prospective employees’ ability to disclose an alleged discriminatory employment practice. To be valid, such agreements must meet the following requirements:
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The provision applies equally to all parties to the agreement;
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The provision states it doesn't restrain the employee from disclosing the underlying facts of alleged discrimination to certain people and for certain purposes;
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The provision expressly states that the disclosure of the underlying facts to certain people and for certain purposes is not disparagement;
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The agreement includes a condition that if there is a non-disparagement provision and the employer disparages the employee to a third party, then the employer may not enforce the agreement, but all other terms remain enforceable;
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Any liquidated damages provision is limited in certain respects; and
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The parties sign an addendum stating they’ve complied with these requirements.
Recordkeeping Requirements
The POWR Act imposes two new recordkeeping requirements on employers.
Employers must keep personnel or employment records for at least five years after the date the record was made, the date of the personnel action, or the date of a final disposition of a charge of discrimination, whichever is later.
Additionally, employers must create and maintain an “accurate, designated repository” of all complaints of discriminatory employment practices. This includes the date of the complaint, the identity of the complaining party (if not anonymous), the identity of the alleged perpetrator, and the substance of the complaint.
The POWR Act makes several other changes to CADA. Marital status is now a protected class for discriminatory employment practices claims. For claims of disability discrimination, showing an employee’s disability has a significant impact on the job is no longer part of a disability discrimination claim, which is more in line with federal anti-discrimination law.
The POWR Act is a significant change in Colorado anti-discrimination law. Employers Council has resources to help you navigate these new issues. Keep an eye out as Employers Council will be presenting a webinar addressing the details of the POWR Act and explaining best practices for employers. In the meantime, if you have any questions, please contact our Member Experience Team.
#Discrimination
#Harassment
#Colorado