Colorado’s POWR Act, which makes changes to workplace harassment and discrimination laws, is now in effect. Under the Act, conduct no longer needs to be severe or pervasive to constitute illegal harassment, and instead needs to satisfy the new, lower threshold, i.e., 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.” Additionally, to successfully defend a harassment claim, employers must demonstrate that:
- They have established a program that is reasonably designed to prevent harassment, deter future harassers, and protect employees from harassment by 1) taking prompt, reasonable action to investigate or address alleged discriminatory or unfair employment practices, and 2) taking prompt, reasonable remedial actions, when warranted, in response to complaints of discriminatory or unfair employment practices;
- They have 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
- They have unreasonably failed to take advantage of this reporting program.
The Act also adds “marital status” as a protected class under the Colorado Anti-Discrimination Act (CADA), and limits the use of nondisclosure agreements by voiding nondisclosure provisions in any agreement that limit an employee or prospective employee’s ability to “disclose or discuss, either orally or in writing, any alleged discriminatory or unfair employment practice,” unless the nondisclosure provision meets certain strict requirements.
For more information on the POWR Act, click here.