Colorado’s New POWR ACT
Expands Standard For Sexual Harassment And Limits Use of Nondisclosure Provisions, Among Other Changes
On August 7, 2023, the Protecting Opportunities and Workers’ Rights Act (“POWR Act”) went into effect in Colorado. It applies to all Colorado employers and all employees working in Colorado. Among other requirements, the POWR Act significantly expands the type of conduct that constitutes unlawful harassment, prohibits discrimination based on marital status, adds additional employment record keeping requirements, and restricts the use of nondisclosure provisions.
Sexual Harassment Definition Expanded by The POWR Act
In enacting the POWR Act, the Colorado General Assembly declared that the long-standing “severe and pervasive” standard – initially crafted by the Federal courts to determine if harassment on the job rose to the level of unlawful discrimination – did not take into account the “realities of the workplace or the harm that workplace harassment causes.”
As a result, the POWR Act specifically rejects the “severe and pervasive” standard for proving unlawful workplace harassment in favor of a new, more lenient, standard. Specifically, the POWR Act defines harassment to mean “unwelcome physical or verbal conduct or any written, pictorial, or visual communication directed an individual or group of individuals because of .. membership in, or perceived membership in, a protected class … which conduct or communication 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.”
The POWR Act specifically states that the conduct or communication need not be “severe of pervasive” to constitute unlawful harassment but it does limit actionable claims to conduct or communication that (i) is an explicit or implicit term or condition of employment; (ii) is a basis for employment decisions affecting the complainant; or (iii) has the purpose or effect of unreasonably interfering with the complainant’s work performance or creates an intimidating, hostile or offensive environment.
This new, less stringent, standard will mean that more conduct will qualify as unlawful harassment under Colorado’s Anti-Discrimination Act and employees will find it easier to plead and prove harassment claims, including claims for sexual harassment. The POWR Act does note that, “petty slights, minor annoyances, and lack of good manners” generally will not constitute unlawful harassment.
POWR Act Additional Protections & Changes
Marital Status Is A New Protected Characteristic
In addition, the POWR Act added marital status to its list of protected characteristics upon which an employer may not discriminate, harass or take adverse action (such as race, sex, gender, sexual orientation, gender identity or expression, age, religion, and disability).
New Record Keeping Requirements
The POWR Act also established new recordkeeping requirements relating to complaints of discrimination and harassment and requests for accommodation. Specifically, Colorado employers must maintain an archive of all complaints of discrimination or harassment and requests for accommodation, including with each complaint the complaint date, the name of the complainant if known, the name of the alleged perpetrator, and the general substance of the complaint. The archive can be in hard copy or electronic form.
The POWR Act also identifies records that must be kept for five years from the date of the record, the personnel action or resolution, such as complaints of discrimination, complaints of harassment, requests for accommodation, pay rates, hiring, firing, promotion, demotion, termination and other records.
Restricted Use of Non Disclosure Provisions That Prohibit Discussion Of Unfair Employment Practices, Including Sexual Harassment
Further, in enacting the POWR Act, the Colorado General Assembly declared that the free discussion of discriminatory practices is necessary to protect employees and that “attempts to interfere with employees’ ability to communicate about and report alleged discriminatory or unfair employment practices are contrary to the public policy of the state.”
Therefore, the POWR Act restricts the use of nondisclosure provisions entered into on or after August 7, 2023 (the effective date of the Act). The POWR Act defines a non disclosure provision as any provision that limits an employee’s (or prospective employee’s) ability to disclose or discuss alleged discriminatory or unfair employment practices. Any such nondisclosure provision is void unless it meets certain requirements, including, but not limited to: (i) mutuality, (ii) contains a disclosure that it does not prevent an employee (or prospective employee) from disclosing facts underlying discriminatory or unfair employment practices to certain individuals and entities, such as family members, legal, financial or religious advisors, certain therapeutic support groups, medical providers, and governmental agencies; (iii) contains a disclosure that statements regarding such underlying facts does not constitute disparagement; (iv) contains a disclosure that an employer’s disparagement of employee prohibits enforcement of the provision; (v) limits liquidated damages; and (vi) is accompanied by an addendum attesting compliance with the requirements.
POWR Act Damages
Employers may be liable for actual damages, attorneys’ fees, costs, and a penalty of $5,000 for each instance in which the employer presents an employee (or prospective employee) with a non-compliant agreement, even if the employer is not attempting to enforce such provisions. There is, though, a narrow “good faith” defense that employers may invoke to attempt to reduce the penalty. Claims may be brought immediately (i.e., with no administrative prerequisites) by the Colorado Civil Rights Commission and the employee or candidate, and punitive damages are available in certain circumstances.
Contact Baird Quinn, LLC today to seek Colorado workplace counsel today.