On May 20, 2021, Colorado Gov. Jared Polis signed into law HB21-1108, known as the Gender Identity Expression Anti-Discrimination Act (the Act). In relevant part, the Act updates Colorado's nondiscrimination provisions applicable to individuals seeking protection on the basis of "sexual orientation," including by adding the terms "gender expression" and "gender identity" to 48 areas of state law (e.g., employment, housing, public accommodation) that prohibit discrimination against members of a protected class.
Following on the heels of the Supreme Court's June 2020 decision in Bostock v. Clayton County, wherein the Court determined that discrimination on the basis of sexual orientation or gender identity is necessarily discrimination "because of sex," Colorado joins a growing coalition of states that have broadened their prohibitions against discrimination, including by extending their antidiscrimination statutes to include prohibitions against gender identity and gender expression discrimination.
The Act, which is currently scheduled to take effect after expiration of the General Assembly's 90-day final adjournment period, i.e., on Aug. 18, 2021 (unless a referendum petition is filed, in which case the Act will be tabled and subject to a general election vote in November 2022), further emphasizes the need for employers to revisit their policies, practices and training to ensure all employees, including managers and supervisors, are aware of these prohibitions.
Background on Colorado Antidiscrimination Law
Prior to this past week, the classes protected from discrimination under Colorado state law were disability, race, creed, color, religion, sex, sexual orientation, marital status, familial status, national origin and ancestry.
The Act adds gender expression and gender identity as protected categories. Gender expression means "an individual's way of reflecting and expressing the individual's gender to the outside world, typically demonstrated through appearance, dress and behavior." Gender identity, on the other hand, means "an individual's innate sense of the individual's own gender, which may or may not correspond with the individual's sex assigned at birth."
In addition to these changes, the Act also revised and expanded the definition of sexual orientation, which previously referred to an individual's "orientation toward heterosexuality, homosexuality, bisexuality or transgender status or another individual's perception thereof." Now, sexual orientation has been broadened to refer to an individual's "identity in relation to the gender or genders to which the individual is sexually or emotionally attracted and the behavior or social affliction that may result from the attraction."
Given these changes, employers are now prohibited from refusing to hire, discharge, promote or demote, harass, or "discriminate in matters of compensation, terms, conditions or privileges of employment" against an individual based on gender expression, gender identity or sexual orientation. Additionally, employment agencies and labor organizations may not "directly or indirectly" discriminate based on gender expression or gender identity. Further, a qualified individual may not be denied or withheld from being admitted to or participating in employment training or the pursuit of employment based on protected status. Finally, employers are prohibited from printing or circulating statements, advertisements or publications that "express, directly or indirectly, any limitation, specification or discrimination" toward gender expression or gender identity.
Importantly, these changes not only impact businesses in the context of employment relationships, but expand to any Colorado state law that prohibits discrimination on the basis of sex or sexual orientation – two categories of protected classes that were already included in the majority of state statutes, including statutes relating to housing, public accommodation, education, taxation, financial services, health care, law enforcement, funeral services and more.
Limitations to the Act – Exceptions for Private Clubs and Religious Professions
Despite the broad scope of the Act, it includes exceptions in certain situations, including based on questions that the Supreme Court left open in Bostock (e.g., bathrooms, religious exemptions). For example, the Act does not apply to "any private club not open to the public" that provides lodging, unless the club has the "purpose of promoting discrimination" in housing toward protected classes. However, there is an added federal tax on purchases made at or payments made to a private club that has a policy restricting membership on the basis of sex, sexual orientation, gender identity or gender expression (along with the rest of the protected classes).
In addition, the Act is not intended to "impede or otherwise limit" protections from Colorado's constitutional provisions on the "free exercise and enjoyment of religious profession and worship." To that end, the Act provides exemptions for owners and operators of religious organizations and confirms that those organizations "may give preference to members of that denomination."
Current LGBTQ+ Antidiscrimination Landscape and Trends
While significant, these changes represent only the tip of the iceberg with respect to the nationwide trend toward increasing protections for LGBTQ+ individuals in the workplace, including based on sexual orientation, sexual expression or sexual identity.
For example, the protection of LGBTQ+ individuals remains a "high substantive priority" for the Equal Employment Opportunity Commission (EEOC), and that priority is reflected in the EEOC's FY 2020 Enforcement and Litigation Data, which indicates that nearly one-third of all 2020 EEOC charges involved allegations of discrimination based on sex. In addition, the Biden administration has prioritized ensuring that federal agencies evaluate, review and revise their rules and regulations to conform to the Supreme Court's decision in Bostock, even as Congress remains paralyzed over the impact of federal legislation to protect LGBTQ+ individuals, such as the Equality Act. Several states have also taken measures to apply Bostock more broadly to their respective state and local laws.
In short, the Act is representative of the types of changes being implemented all over the country, and employers should, if they have not already, prioritize ensuring their policies and practices reflect this movement.
Call to Action
Colorado employers should prepare now for the Act's implementation. To start, they should review and revise employment policies and handbooks to ensure their antidiscrimination language protects individuals based on sexual orientation, gender identity and gender expression, as defined by the Act. This includes, for example, antiharassment policies, equal employment opportunity statements, codes of conduct, dress and grooming policies, and other HR policies and procedures impacting gender-related characteristics. In addition, employers should modernize harassment prevention training with realistic and representative scenarios, including those that reflect LGBTQ+ issues and workers.
Employers wishing to create a more inclusive workplace may also consider using gender-neutral pronouns and language in forms and policy statements moving forward. Given the scope of the Act, employers should also consider developing gender-transition resources for employees to ensure that health care benefits are relevant and applicable to LGBTQ+ employees, including by reviewing health care coverage, leaves of absence, disability-related benefits, and domestic partner and same-sex spousal benefits. Finally, given the continued nationwide trend toward increasing workplace protections for LGBTQ+ individuals, employers should continue to include LGBTQ+ demographics in diversity and inclusion data and ensure that LGBTQ+ workers and issues are incorporated into diversity and inclusion initiatives moving forward.
As always, employers with specific questions concerning the scope and impact of the Act and related issues concerning their LGBTQ+ workforces should consult with legal counsel to determine the best course of action.*
* Many thanks to Megan Uren, Denver office summer associate, for her help in drafting this post.
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