Federal & State Regulations | Discrimination - Other - Colorado

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Summary of differences between federal and state regulations

Te federally protected classes in employment discrimination include race, color, religion, national origin, age (40 and over), sex (including pregnancy, sexual orientation, and gender identity), disability, and genetic information.

Under Colorado law, the following are considered protected classes with regards to discriminatory or unfair employment practices:

Disability (as defined by the Americans with Disabilities Act of 1990),
Race (includes traits commonly or historically associated with race, including hair texture, hair type, hair length, or a protective hairstyle such as braids, locs, twists, tight coils or curls, cornrows, Bantu knots, Afros, and headwraps),
Creed,
Color,
Sex,
Sexual orientation (an individual’s identity, or another individual’s perception thereof, in relation to the gender or genders to which the individual is sexually or emotionally attracted and the behavior or social affiliation that may result from the attraction) Gender identity (an individual’s innate sense of the individual’s own gender, which may or may not correspond with the individual’s sex assigned at birth),
Gender expression (an individual’s way of reflecting and expressing gender, typically demonstrated through appearance, dress, and behavior),
Marital status (single, cohabitating, engaged, widowed, married, in a civil union, or legally separated, or in the process of divorce or annulment),
Religion,
Age (40 and over),
National origin, and
Ancestry.

Colorado’s employment discrimination law applies to all employers in the state.

POWR Act

On June 6, 2023, Senate Bill (SB) 23-172 was enacted, the “Protecting Opportunities and Workers’ Rights Act (POWR),” into law. The Act, which amends the Colorado Anti- Discrimination Act (CADA) became effective August 7, 2023.

Here are 5 changes made by the POWR Act:

The POWR Act removes the “severe or pervasive” standard in asserting a harassment claim. The standard is now: “to engage in, or the act of engaging in, any unwelcome physical or verbal conduct or any written, pictorial, or visual communication directed at an individual or group of individuals because of that individual’s or group’s membership in, or perceived membership in a protected class …”.
The POWR Act makes nondisclosure agreements void unless specific requirements are satisfied.
Previously, when determining a discriminatory or unfair employment practice in the context of a disability claim, CADA considered whether “the disability has a significant impact on the job.” The POWR Act eliminates the requirement that an individual’s disability has “a significant impact on the job” and specifies that the reasonable accommodation should “allow the individual to satisfy the essential functions of the job.”
The POWR Act adds “marital status” as a protected category under the law.
The POWR Act requires employers to maintain “any personnel or employment record” for a minimum of five years and maintain complaints of discrimination in a designated repository.

Crown Act

The Colorado CROWN Act prohibits racial discrimination based on a person’s hair traits and hairstyles that are historically associated with race. It applies to public education, public accommodations, advertising, and public sector employment.

In public sector employment, appointments and promotions to positions must be based on fair and open comparative analysis of candidates based on objective criteria and not based on race. Under the Act, “race” is redefined to include hair traits and protective hairstyles. In addition, examples of “protective hairstyles” are provided.

Key Crown Act definitions are:

“Race” includes hair texture, hair type, hair length, or a protective hairstyle that is commonly or historically associated with race.
“Protective hairstyle” includes such hairstyles as braids, locs, twists, tight coils or curls, cornrows, Bantu knots, Afros, and headwraps.

Employer defined

“Employer” means the state of Colorado or any political subdivision, commission, department, institution, or school district thereof, and every other person employing persons within the state. It does not mean religious organizations or associations, except those supported in whole or in part by money raised by taxation or public borrowing.

Marital status discrimination

It is a discriminatory or unfair employment practice for any employer to discharge an employee or to refuse to hire a person solely on the basis that the employee or person is married to or plans to marry another employee of the employer. This does not apply to employers with 25 or fewer employees. However, an employer may discharge an employee or to refuse to hire a person where:

One spouse directly or indirectly would exercise supervisory, appointment, or dismissal authority or disciplinary action over the other spouse;
One spouse would audit, verify, receive, or be entrusted with moneys received or handled by the other spouse; or
One spouse has access to the employer’s confidential information, including payroll and personnel records.

Referral discrimination

It is a discriminatory or unfair employment practice for any private employer to refuse to hire, or to discriminate against, any person, whether directly or indirectly, who is otherwise qualified for employment solely because the person did not apply for employment through a private employment agency. An employer will not be deemed to have violated this rule if the employer retains one or more employment agencies as exclusive suppliers of personnel and no employment fees are charged to an employee who is hired as a result of having to utilize the services of any such employment agency.

Lawful activity off the premises

It is a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction:

Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or
Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.

Employee discussions about wages

It is a discriminatory or unfair employment practice (unless otherwise permitted by federal law) for an employer:

to discharge, discipline, discriminate against, coerce, intimidate, threaten, or interfere with any employee or other person because the employee inquired about, disclosed, compared, or otherwise discussed the employee’s wages;
to require as a condition of employment nondisclosure by an employee of his or her wages; or
to require an employee to sign a waiver or other document that purports to deny an employee the right to disclose his or her wage information.

This does not apply to employers who are exempt from the provisions of the National Labor Relations Act.

Sexual orientation discrimination

Colorado’s anti-discrimination laws recognize sexual orientation as a protected class in employment. It is unlawful for an employer to make employment decisions such as hiring, promoting, demoting, or discharging, based on an employee’s sexual orientation. It is unlawful for an employment agency to refuse to list, classify, or refer a qualified individual for employment for an available job based on the individual’s sexual orientation. It is unlawful for a labor organization to exclude any qualified individual from full membership rights or to otherwise discriminate against any of its members in regard to equal work opportunities based on the member’s sexual orientation. It is unlawful for an employer, employment agency or labor organization to print or circulate any statement, advertisement, or publication that expresses either directly or indirectly any preference as to the sexual orientation of its employees, prospective employees, or members.

“Sexual orientation” means a person’s orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or another person’s perception thereof.

See www.colorado.gov/pacific/dora/civil-rights/employment-discrimination for more information.

Remedies

For a violation, and employee may bring a civil suit for damages in any district court and may sue for all wages and benefits which would have been due up to and including the date of the judgment had the discriminatory or unfair employment practice not occurred.

Other prohibitions

No employer, employment agency, or labor organization may suggest or require that applicants submit their photographs prior to their employment or placement, unless the requirement is based upon a bona fide occupational qualification.