On March 8, 2021, Senate Bill 21-176, “Protecting Opportunities and Workers’ Rights (POWR) Act,” was introduced in the Colorado Legislature. This bill, if enacted, would make it much 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 significant:
- Employees would not need to go through the charge and investigation process of the Colorado Civil Rights Division (CCRD) before filing suit, as required by current law, but rather could file a complaint in court 14 days after serving a written demand on the employer. The CCRD process, which has existed for decades and is patterned on the EEOC process, has significant benefits, such as fostering prompt settlements.
- Discrimination laws would apply to contractors and subcontractors which, in most cases, are in a substantially different position from employees.
- An employer would not be able to assert a defense that an employee failed to avail himself/herself of an anti-harassment policy unless the employer could show that its anti-harassment policy has had “documented success” and that no employee has made a complaint of harassment within the last 6 years. Documented success is a vague term which would be difficult to establish. Requiring an employer to show that there has not been a retaliation complaint in 6 years is unreasonable and prone to abuse by employees who seek to deprive employers of the defense.
- One incident would be enough to support a hostile work environment regardless of whether it was “severe and pervasive,” which is required under existing law. While some cases have held that one extremely egregious incident may, under some circumstances, support a claim, this provision is unduly burdensome on employers and could encourage meritless claims.
- The definition of hostile work environment would be expanded and extends to anything that “undermines a person’s sense of well-being.” Like the previous provision, this would unreasonably expose employers to liability for minor incidents and encourage meritless claims.
- It would be a discriminatory employment practice for an employer to fail to conduct an investigation of a harassment complaint. While, in most cases, employers should investigate complaints of harassment and risk adverse decisions in litigation by failing to do so, a decision not to investigate a complaint, in and of itself, should not be illegal. It should be up to the employer to decide whether to investigate a particular claim, for example in cases that the employer believes do no warrant a full investigation.
- Confidentiality agreements would be prohibited in settlement agreements except for the amount of a settlement payment and when requested by an employee. This would discourage employers from entering into settlement agreements, which are often beneficial to employees and employers, and would increase litigation costs.
- The bill would limit an employer’s ability to make inquiries regarding disabilities and to require medical examinations in ways which are inconsistent with the federal Americans with Disabilities Act.
While few would dispute that workers should be protected from harassment, discrimination, retaliation and, other unlawful conduct, there are already robust laws and reasonable procedures in place to protect workers from such conduct. In any dispute, there should be a level playing field. This bill, however, would stack the deck in favor of employees.
The bill was scheduled for a hearing before the Senate Judiciary Committee on March 25, 2021, but the hearing has been postponed and a new hearing has not been set yet. More information can be found here.