Colorado Legislature Bill Would Dramatically Expand Employment Discrimination Act

United States: Colorado Legislature Bill Would Dramatically Expand Employment Discrimination Act

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On March 8, 2021, Senate Bill 21-176, “Worker Rights and Opportunities Protection Act (POWR),” was introduced in the Colorado Legislature. This bill, if enacted, would make it easier for employees to sue employers for discrimination, harassment and retaliation and much more difficult for employers to defend themselves. The following provisions are particularly important:

  • Employees would not need to go through the Colorado Civil Rights Division (CCRD) accusation and investigation process before filing a complaint, as required by applicable law, but could instead file a complaint with the court 14 days after serving a written request on the employer. The CCRD process, which has been around for decades and is modeled on the EEOC process, has significant advantages, such as promoting prompt settlements.
  • Discrimination laws would apply to contractors and subcontractors who, in most cases, are in a significantly different position from that of employees.
  • An employer would not be able to invoke a defense that an employee has not used an anti-harassment policy unless he can demonstrate that his anti-harassment policy has been “successful.” documented ”and that no employee has made any complaint of harassment in the past 6 years. Documented success is a vague term that would be difficult to establish. Requiring an employer to demonstrate that there has been no reprisal complaint for 6 years is unreasonable and subject to abuse by employees who seek to deprive employers of the defense.
  • One incident would be enough to create a hostile work environment, be it “serious and intrusive”, which is required by applicable law. While some cases have argued that an extremely serious incident may, in certain circumstances, justify a claim, this provision is unduly onerous on employers and could encourage unfounded claims.
  • The definition of hostile work environment would be broadened to cover anything that “undermines a person’s sense of well-being”. Like the previous provision, this would expose employers to unreasonable liability for minor incidents and encourage unfounded claims.
  • It would be discriminatory employment practice for an employer not to investigate a harassment complaint. While in most cases employers should investigate harassment complaints and risk adverse litigation decisions by failing to do so, a decision not to investigate a complaint, per se, does not. should not be illegal. It should be up to the employer to decide whether to investigate a particular complaint, for example in cases which, in their opinion, do not warrant a full investigation.
  • Confidentiality agreements would be prohibited in settlement agreements except for the amount of a settlement payment and at the request of an employee. This would discourage employers from entering into settlement agreements, which are often beneficial to employees and employers, and increase litigation costs.
  • The bill would limit an employer’s ability to investigate disabilities and require medical examinations in a manner inconsistent with federal Americans with Disabilities Act.

While few would dispute that workers should be protected from harassment, discrimination, retaliation and other illegal behavior, there are already strong laws and reasonable procedures in place to protect workers from such behavior. In any dispute, there should be a level playing field. This bill, however, would stack the bridge in favor of employees.

The bill was due to be heard before the Senate Judiciary Committee on March 25, 2021, but the hearing has been postponed and a new hearing has not yet been scheduled. More information can be found here.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.


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