SB 23-172 titled Protecting Opportunities And Workers' Rights Act (“POWR Act”) changed the landscape for employers. Employees now have an avenue through the Colorado Civil Rights Division to pursue harassment as a basis or description of discrimination. The POWR Act redefines harassment as unwelcome conduct directed at an individual or group of individuals in, or perceived to be in, a protected class, which conduct is subjectively offensive to the individual alleging harassment and objectively offensive to members of the same protected class as the individual alleging harassment. The conduct need not be severe or pervasive to constitute a discriminatory or an unfair employment practice. The POWR Act also adds marital status to the definition of protected class.
The POWR Act dismissed the severe or pervasive standard, created by the Courts, to determine if harassment at work is a discriminatory or an unfair employment practice and implemented a new standard that prohibits unwelcome harassment. Under the POWR Act the Court is now directed to consider the frequency of the conduct or communication, the number of individuals engaged in the conduct or communication, the type or nature of the conduct or communication, the duration of the conduct or communication, the location where the conduct or communication occurred, whether the conduct or communication was threatening, whether any power differential exists between the parties, any use of epithets, slurs, or other conduct or communication that is humiliating or degrading, and whether the conduct or communication reflects stereotypes about an individual or group of individuals in a protected class.
What can harassment look like? This can look like Jason, the only Hispanic person in his department, noticing that his colleagues consistently exclude him from team meetings and important projects without any valid reasons. He feels isolated and marginalized. Amanda, an employee with a disability, faces constant ridicule and mockery from her coworkers who question her abilities and talk about her and her accommodations. She has overheard them call her lazy and they express outward frustration when they have to do something that Amanda has an accommodation for, creating a hostile and discriminatory work environment. Sarah’s coworker tells sexually explicit jokes regularly. She tried to ignore it and does not want to draw any attention to herself for fear that her coworker will start talking about her. The coworker even commented on her outfit one day at the training meeting, making Sarah feel uncomfortable. She now tries to avoid the coworker and areas they may be in.
Under the previous standard petty slights, minor annoyances, and lack of good manners did not constitute harassment. However, under the new law they may. The above examples may not have arisen to the level of harassment in the past. However, under the new standards these examples likely would.
So, how do you protect your employees and your workplace? The new law establishes an affirmative defense if you establish a program that is designed to prevent harassment, deter, reasonable action to investigate or address alleged discriminatory or unfair employment practices, take reasonable remedial actions, and communicate the program to all employees, and encourage a culture where free reporting, discussion, and exposure of discriminatory, harassing, and unfair employment practices are encouraged.
Please let us know if you need help establishing a program, training your employees and supervisors to recognize and correct harassment or unfair employment practices, training staff in conducting investigations, or want additional information on best employment practices.
Amber DeCarli, Esq.
303-209-7813 Ext. 3