Is Your Organization Compliant with the Colorado POWR Act?

by | Apr 9, 2024

colorado powr act

LEGAL DISCLAIMER: The information provided in this blog post is for informational purposes only. As I am not an attorney, it should not be construed as legal advice or relied upon as a substitute for consulting with a qualified attorney regarding your specific situation. The Colorado Protecting Opportunities and Workers’ Rights (POWR) Act is a complex piece of legislation, and its interpretation may vary depending on individual circumstances. Therefore, it is essential to seek guidance from a licensed employment attorney who can provide tailored advice based on your unique circumstances and the current state of the law. Reading this blog post does not create an attorney-client relationship. By reading this blog post, you acknowledge that you have read and understand this disclaimer.

The Protecting Opportunities and Workers’ Rights (POWR) Act (SB 23-172) took effect on August 7, 2023. There are several key provisions in this law that apply to all Colorado employers and warrant a review and revision of your organization’s policies, practices, and documents, including:

 

Expansion of Protected Classes

Protections against employment discrimination now include MARITAL STATUS.

 

Harassment Redefined

The threshold for an individual to bring a harassment claim in Colorado no longer requires that the harassment be “severe or pervasive”; only that the behavior—whether physical, verbal, written, pictorial, or visual—is:

  • unwelcome;
  • directed at an individual or group of individuals because of membership or perceived membership in a protected class;
  • subjectively offensive to the individual alleging harassment; and
  • objectively offensive to a reasonable member of the same protected class.

Harassment is actionable if submission (or not):

  • is explicitly or implicitly made a term or condition of employment;
  • is used as a basis for employment decisions; or
  • has the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.

Harassment does NOT include “petty slights, minor annoyances, and lack of good manners” except “when taken individually or in combination and under the totality of the circumstances” which includes:

  • frequency, duration, and location;
  • number of individuals involved; and
  • type or nature of the conduct—threatening? epithets or slurs? stereotypes? exacerbated by a power differential?

“Totality of the circumstances” does not include:

  • nature of the individual’s work; or
  • past frequency of harassment in the workplace.

While we have no case law yet to reference in Colorado and therefore must wait and see how claims under the POWR Act will be addressed and resolved in the courts, Kaitlin Spittell & Marielle Moore of Ogletree Deakins in Denver suggest that we look to similar legislation passed in other jurisdictions, including New York City—namely, the New York City Human Rights Law—and the relevant case law there for insight. NYC Courts have considered whether the claimant was treated “less well than other employees” because of the relevant characteristic and whether the alleged conduct alleged exceeded “what a reasonable victim of discrimination would consider petty slights and trivial inconveniences” (in other words, “mere personality conflicts” do not suffice for an actionable claim of harassment. Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1003 [2d Dept 2021].

 

Harassment: Limitations on Affirmative Defenses

If the harassing conduct was perpetrated by a supervisor, the employer has NO AFFIRMATIVE DEFENSE unless they:

  • have a program reasonably designed to prevent harassment, deter future harassers, and protect employees from harassment;
  • take prompt, reasonable action to investigate or address alleged discriminatory or unfair employment practices;
  • communicate the existence and details of the program to supervisory and nonsupervisory employees; and
  • the employee unreasonably failed to take advantage of the program.

 

Disability Requiring Accommodation Redefined

Prior to the POWR Act, to refuse to hire, to discharge, or to promote or demote an individual with a disability was not deemed a discriminatory employment action if:

  1. there was no available reasonable accommodation;
  2. the disability disqualified the individual from the job; and
  3. the disability had a significant impact on the job.

Under the POWR Act, there is no discriminatory employment action if:

  1. there is no reasonable accommodation that would allow the individual to satisfy the essential functions of the job; and
  2. the disability actually disqualifies the individual from the job.
    Colo. Rev. Stat. § 24-34-402(1)(a)(II)

 

Recordkeeping

Employers are required to:

  • document ALL COMPLAINTS (verbal or written) of discrimination, harassment, or unfair employment practices;
  • create a SEPARATE “designated repository” of such complaints, including date, complainant name (if not anonymous), alleged perpetrator, and substance of the complaint;
  • maintain “personnel and employment records” for FIVE YEARS from the date the record was made, the date of the action the record is about, or the final disposition of a charge of discrimination or related action, whichever is later.
  • “personnel and employment records” include:
    • written and oral employee complaints of discrimination, harassment, or unfair employment practices;
    • submitted job applications;
    • records related to hiring, promotion, demotion, transfer, layoff, termination, rates of pay or other terms of compensation, and selection for training or apprenticeship;
    • requests for accommodation; and
    • records of training provided to or facilitated for employees.

 

Nondisclosure Agreements

The POWR Act imposes new requirements on employee nondisclosure agreements, placing limits on restrictions of disclosure or discussion of alleged “discriminatory” or “unfair” employment practices. Any provision in an agreement that limits the ability of an employee or prospective employee to disclose an alleged discriminatory or unfair employment incident or practice is considered void, unless they:

  • include language that the agreement does not limit the ability of employee to disclose any alleged discriminatory or unfair employment practice
  • affirm that the employee has not alleged and is not aware of any discriminatory or unfair employment practice
  • apply equally to both the employer and employee or prospective employee
  • do not prohibit the individual from disclosing the underlying facts of any alleged discriminatory or unfair employment practice, including the existence and terms of a settlement agreement, to:
    • immediate family members
    • religious advisor
    • medical or mental health provider
    • mental or behavioral health therapeutic support group
    • legal counsel
    • financial advisor
    • tax preparer
  • expressly state that disclosure of the underlying facts of any alleged discriminatory or unfair employment practice does not constitute disparagement and the employer may not seek to enforce the nondisparagement or nondisclosure provisions of the agreement or seek damages if the employer has disparaged the individual in violation of the nondisparagement provision
  • do not include a liquidated damages provision that penalizes or punishes the employee or prospective employee for a breach; any liquidated damages provision must be reasonable and proportionate to the anticipated actual economic loss for breach and take into account the “nature or severity” of the breach
  • include an addendum, signed by all parties, attesting to compliance with the POWR Act

 

Failure to Comply with the POWR Act

Ramifications for violation of the POWR Act may include:

  • actual damages, costs, and attorneys’ fees
  • penalty of $5,000 per violation (may be reduced upon a showing of good faith by the employer)

Evidence of one or more agreements with an NDA involving the same individual or individuals may be used to support an award of punitive damages.

Special thanks to Kaitlin Spittell, Associate, and Marielle Moore, Of Counsel for Ogletree Deakins, one of HR Cert Prep Pros’ trusted Preferred Partners, for providing the source materials for this blog post during their presentation on the POWR Act at Mile High SHRM’s Quarterly Education Event (QEE) in March 2024. Any misinterpretations or misrepresentations are solely the error of the author and not Kaitlin, Marielle, or Ogletree Deakins. Please feel free to reach out to them at Kaitlin.Spittell@Ogletree.com or Marielle.Moore@Ogletree.com should you have questions or if they can be of assistance to you and your organization with an employment law issue.

Related Blog Posts

Survey Results: How Are You Feeling About 2021?

The years 2020 and 2021 have been unlike any others we’ve seen. A global pandemic is winding down, masks are coming off, people are returning to offices, and businesses are reopening. But what does that all mean to our HR community? To find out, we conducted an...

0 Comments

JOIN OUR HR & BUSINESS COMMUNITY

Learn. Grow. Network. Collaborate.

Join like-minded HR & business professionals on our mailing list and we'll send you updates on our programs as well as invitations to our Happy Hours in Denver & Boulder. See you there!

You have Successfully Subscribed!

Share This