Stacy Jensen No Comments

Governor Polis signed the Protecting Opportunities and Workers’ Rights (POWR) Act into law June 7th, expanding the Colorado Anti-Discrimination Act (CADA). The truncated version of how this impacts Colorado employers is:

Record Keeping Requirement UPDATE:
1. Employers must keep personnel or employment records for at least five years after either (A) the date the employer made or received said record or (B) the date of the personnel action that the record pertains to or the final disposition of a charge of discrimination or any related action.
1. InTANDEM HR maintains our own personnel records for all electronic onboarding, all documents that are uploaded to the repository, and anything sent to us.
2. Employers must now maintain an “accurate, designated repository” of all written or oral complaints of “discriminatory or unfair employment practices,” as defined under the CADA Section 24–34–402(1)(a) It must include the date of the complaint, identities of the complainant and the perpetrator (if disclosed), and the substance of the complaint.

Discrimination law UPDATE
POWR Act, imposes changes to CADA, redefining the standard for harassment claims, setting stringent requirements on NDA’s, and adding marital status as a protected category.

Colorado had matched the federal law definition of “harassment” which required that for conduct to be considered harassment, it must be “severe or pervasive.” With the POWR Act, the severe or pervasive standard no longer applies in Colorado. Now, in the Centennial state, 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.
The conduct at issue must fall in one of the three categories for a harassment claim to be viable:
1. Submission to the conduct or communication is explicitly or implicitly made a term or condition of the individual’s employment; or
2. Submission to, objection to, or rejection of the conduct or communication is used as a basis for employment decisions affecting the individual; or
3. The conduct or communication has the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.
POWR expressly states that “petty slights, minor annoyances, and lack of good manners do not constitute harassment unless the slights, annoyances, or lack of manners, when taken individually or in combination under the totality of the circumstances.”

It also limits the ability of employers to assert an affirmative defense to a harassment claim in cases where the employee alleges harassment by a supervisor. Employers can only assert an affirmative defense to this type of claim if it meets each of the following requirements:

1. The employer has established a program designed to prevent harassment, deter future harassers, and protect employees from harassment. The employer must both “take prompt, reasonable action to investigate or address alleged discriminatory or unfair employment practices” and “take prompt, reasonable remedial actions, when warranted, in response to complaints of discriminatory or unfair employment practices.”
2. The employer has communicated the existence and details of how to make complaints to both its supervisory and nonsupervisory employees, such as through a handbook or policy; and
3. The employee has unreasonably failed to take advantage of this reporting program.

THIS IS WHERE YOUR HANDBOOK COMES IN. All InTANDEM HR approved employee handbooks include an anti-harassment provision and complaint reporting mechanism. All employees who electronically onboard automatically receive their approved handbook. IF YOU DO NOT have an approved handbook, and if you are not electronically onboarding all team members, you are vulnerable to not being able to use an affirmative defense.

Disability Discrimination
Previously, CADA provided that it was not a discriminatory practice for an employer to take an adverse employment action “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.” The requirement that the disability had “a significant impact on the job” has been eliminated. The loosened standard provides only that it is not a discriminatory practice for an employer to take an adverse employment action “if there is no reasonable accommodation that the employer can make with regard to the disability that would allow the individual to satisfy the essential functions of the job and the disability actually disqualifies the individual from the job.”

Marital Status
Marriage status to a coworker has been protected for some time, unless there is direct supervision. Now, all marital status is protected (briefly, I will say that it is my experience employers have always operated under that respect and assumption, though it is now “law law”).

Non-Disclosure Agreement Requirements
If you have made it this far, I commend you. I will further say, please, have your NDA reviewed by a licensed employment law attorney (which I am not nor ever would I pretend to be). There are significant and many changes to NDA requirements that must be met for a nondisclosure provision to be enforceable in the employment context.

Keep in mind that these laws are not retroactive, but rather kicked in on Monday, August 7th, 2023.