Follow us on LinkedIn to see future News.
June 16, 2023
On June 6, 2023, Colorado enacted the Protecting Opportunities & Workers’ Rights (POWR) Act to further address discriminatory or unfair employment practices.
Lower Threshold of Proof and Higher Evidentiary Standard for Affirmative Defenses in Harassment Claims
Most significantly, the POWR Act lowers the threshold for harassment claims under the Colorado Anti-Discrimination Act (CADA). The judicially-created standard that, to be actionable, harassment must be “severe or pervasive” no longer applies in Colorado. Instead, conduct that is “subjectively offensive to the individual alleging harassment and is objectively offensive to a reasonable individual who is a member of the same protected class” will be considered harassment under Colorado law.
If an employee asserts harassment by a supervisor, employers had been able to assert an affirmative defense – known from two landmark United States Supreme Court decisions as the Faragher-Ellerth defense – that the employer “exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and that the employee unreasonably failed to take advantage of the preventive or corrective opportunities. Under the POWR Act, an employer can assert an affirmative defense only if it has “a program that is reasonably designed to prevent harassment, deter future harassers, and protect employees from harassment.” The employer must demonstrate the following: (1) that it has a program to prevent and deter harassment and takes appropriate action in response to complaints of discrimination; (2) that it has communicated the existence and details of the program to supervisory and nonsupervisory employees; and (3) that the employee has unreasonably failed to take advantage of the program.
Modified Burden in Disability Claims
The CADA provides that it is not a discriminatory practice for an employer to take an adverse employment action against an employee “if there is no reasonable accommodation that the employer can make with regard to the disability, the disability actually disqualifies the individual from the job, and the disability has a significant impact on the job.” Under the POWR Act, the requirement that the disability had “a significant impact on the job” is eliminated.
Marital Status as a Protected Characteristic
The POWR Act includes “marital status” as a protected characteristic in the employment context (“marital status” already is a protected characteristic in places of public accommodation).
Mandatory Criteria for Enforcing Nondisclosure Agreements
The POWR Act voids nondisclosure agreements that are entered into after the Act’s effective date if they limit the ability of an employee or prospective employee to disclose any alleged discriminatory or unfair employment practice, unless the provision meets each of the following conditions:
Either the Colorado Civil Rights Commission or an individual may bring an action against an employer that presents an employee with a noncompliant agreement.
Additional Recordkeeping Obligations
The POWR Act obligates employers to preserve personnel and employment records for a period of five years.
“Personnel or employment record” includes (1) requests for accommodation; (2) written and oral employee complaints of discrimination, harassment, or unfair employment practices; (3) job applications; (4) records related to hiring, promotion, demotion, transfer, layoff, termination, rates of pay or other terms of compensation, and selection for training or apprenticeship; and (5) records of training provided to or facilitated for employees. With respect to complaints of discrimination, harassment, or unfair employment practices, employers must maintain a “designated repository” that includes the date of the complaint; the identity of the complaining party; the identity of the alleged perpetrator; and the substance of the complaint.
No Retroactivity
The POWR Act will become effective on August 7, 2023. It does not apply retroactively.
Employer Takeaways
Prepare now for compliance with the POWR Act by the effective date. Ensure that you have a program to prevent and investigate harassment claims, and communicate that program to employees. Revise nondisclosure agreements to comply with the new standards. Update your retention schedules for employment records.
*Special thanks to Brooke Palma, our Office Administrator, for her contributions to this article.
The author of this article, Patricia Tsipras, is a member of the Bar of Pennsylvania. This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in Colorado, or Pennsylvania, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
