The POWR Act contains sweeping changes to Colorado’s fair employment laws

The Colorado General Assembly recently enacted the Protecting Opportunities and Workers’ Rights Act (“POWR”). This new law creates a number of obligations for employers operating in Colorado in the areas of sexual harassment and discrimination. Key highlights of the change include increased scrutiny for claims of sexual harassment and redefining the term “sexual harassment” more favorably toward employees. Given the breadth of changes, organizations with employees working in Colorado should review their policies and training programs to ensure they are compliant with POWR. As always, Syntrio recommends consulting with employment counsel to formulate a plan that best complies with the law and your organizational policies.

The Colorado POWR Act is similar to legislation in other states in recent years in its attempt to empower employees to speak up about claims of sexual harassment and discrimination and to keep companies from burying such allegations with settlements containing nondisclosure agreements. The changes will be familiar for employers working in New York, California, or Illinois. For those employers who have operated wholly within the state of Colorado, there may be some shocking new information that will require an overhaul of policy. Among the provisions of the POWR Act include:

Limitations on Nondisclosure Agreements

A key facet of POWR is its furtherance of the state of Colorado’s public policy to encourage “free reporting, discussion and exposure of discriminatory or unfair employment practices” as a means of providing enhanced protection to employees’ Speak Up! rights.  Under POWR, employees cannot be legally restrained from speaking up to anyone regarding the underlying facts of an allegation, and reporting a concern to anyone does not constitute disparagement of the organization.

Increased Scrutiny for Sexual Harassment

Much like prior legislation in California and New York, the POWR Act has lowered the standard of proof for claims of sexual harassment in Colorado from “severe and pervasive” in favor of a standard analyzing claims of harassment as unwelcome 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.” This means that even a single very offensive comment or action could rise to the level of harassment. POWR notes, “even conduct that was previously welcome may be unwelcome between two individuals” and thus subject to valid claims of harassment. Practically, for those employers who are used to dismissing claims of harassment that do not show a pattern, this change (as well as some to be discussed in the coming paragraphs) marks a need for a significant shift in investigation and response policy (as well as education).

Limitations on Affirmative Defenses to Harassment Claims

The POWR Act limits an employer’s ability to assert affirmative defenses of claims against supervisors. Previously, merely having a program in place to prevent harassment was an affirmative defense to claims. Under POWR, not only must an employer have a plan and program in place to deter harassers, but that program must be communicated to employees, and the alleged harasser must have failed to take advantage of the program. Additionally, under POWR, employers must take “prompt and reasonable” action to investigate the claim and take remedial actions where warranted.

The limitations on affirmative defenses make selecting and properly using the right training program an essential facet of compliance with Colorado sexual harassment law and the ability to preserve the affirmative defense to claims against supervisors. While the POWR Act stops short of requiring harassment training in Colorado, the state has long officially recommended training, and as you can see, failing to educate employees and ensure they take the training properly is a critical component of avoiding liability when a supervisor is accused of harassment.

Other POWR Act Provisions

The POWR Act also specifically includes marital status as a protected class and provides some clarification to the state’s reasonable accommodation of disabilities standard. The law also requires employers to maintain records of personnel actions for five years. It must keep claims of harassment and discrimination in a “designated repository” for that amount of time. There are a number of other minor provisions in the POWR Act that may impact your business. For this reason, we strongly recommend consulting with your employment counsel to see what changes you may need to make to ensure compliance with this new and major change to Colorado’s fair employment law.

Conclusion

The POWR Act contains sweeping changes to Colorado’s fair employment laws and aligns the state with other large states such as California, New York, and Illinois. It would not be surprising to see Colorado amend POWR in the future to require harassment training in addition to the changes made this year. For that reason, Syntrio welcomes the opportunity to speak with a member of your staff about our full range of compliant training products to help you avoid any future changes to Colorado law and keep your workforce educated on these important topics, vastly improving your workplace culture. We look forward to working with you soon.