On February 27, 2023, SB23-172, the Protecting Opportunities & Workers' Rights Act ("POWR"), was introduced in the Colorado Senate. Like its predecessors in previous sessions, POWR would, if enacted, make sweeping changes to the law of employment discrimination and harassment in Colorado, including the following:
- The bill would eliminate the requirement of showing that harassment is severe or pervasive – the standard that has been applied in federal and state courts for many years to weed out isolated incidents and claims which are not sufficiently severe.
- The legal standards for discrimination and harassment would not vary by workplace. This could create practical problems in certain specialized industries. For example, employees who work in a mental institution might legitimately be expected to tolerate offensive behavior more so than in other workplaces. The bill, however, would prohibit this.
- Marital status would be a protected class like race, religion, sex, sexual orientation and other characteristics which have been traditionally subjected to workplace discrimination. Another Colorado law limits an employer's ability to discharge based on marital status, but with important exceptions. That is appropriate because employers should not have to allow spouses to supervise each other, make financial decisions about each other, or review each other's performance. Making marital status a protected class would open the door to these and other issues.
- It would be a violation to fail to conduct an investigation. Thus, even if discrimination or harassment was ultimately found not to have occurred, merely failing to investigate would be a violation of the law.
- The employer would not be able to assert an affirmative defense that the employee failed to complain about harassment—an important defense that has existed under federal and state law for many years—if there had been an internal complaint or a complaint to a regulatory agency within the past 5 years.
- The bill would severely limit confidentiality agreements in discrimination and harassment cases and provide harsh penalties and a private right of action for employees. Furthermore, it would allow an employee to present evidence that the employer has used confidentiality agreements in other cases.
While very significant, these changes do not go as far as
similar bills introduced the past few legislative sessions. For
example, the requirement of filing a charge of discrimination and
investigation by the Colorado Civil Rights Division would remain.
In addition, this bill does not afford protection against
discrimination or harassment to independent contractors. However,
if enacted, this bill would make it significantly easier for
employees to prove discrimination and harassment claims and
significantly more difficult for employers to defend themselves
from such claims. Employers, human resource professionals, and
employment lawyers should follow this bill carefully and be
prepared to comply with it should it be enacted. The bill is
scheduled for hearing on March 20, 2023 in the Senate Judiciary
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