by David Law
David Law
In June 2023, Governor Jared Polis signed into law the Protecting Opportunities and Workers’ Rights (“POWR”) Act, dramatically altering Colorado’s antidiscrimination law, and presenting a host of new challenges for employers. The new law went into effect on August 7, 2023. This article covers the major aspects of the law, and best practices for ensuring compliance.
New Standard for Harassment
Historically in Colorado, to make out a claim for harassment, an employee had to show that the conduct was “severe or pervasive.” This was a difficult standard to meet, as it required employees show that their work environment was “permeated” with discriminatory intimidation, ridicule, and insults. Petty slights, minor annoyances, and isolated incidents were not sufficient.
The POWR Act scraps the severe or pervasive standard and replaces it with a new rule: harassment is legally actionable if it is (a) unwelcome (b) directed at an individual because of their membership in a protected class, and (c) subjectively offensive to the individual and objectively offensive to a reasonable person in the same protected class. The Act states that the type of work and the frequency of harassment have no bearing on whether the objective standard is satisfied. Under the new law, even a single incident can constitute unlawful harassment. Notably, the law uses a modified objective standard by asking whether a reasonable person in the same protected class would find the conduct offensive. It is unclear how this modified reasonable standard will affect how harassment claims are analyzed.
Action Items: Review your EEO and anti-harassment policies to ensure they are up to date and drafted to comply with the new law.
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