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['Discrimination']
['Discrimination']
08/08/2023
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Discrimination - Other - Colorado
Summary of differences between federal and state regulations
On June 6, 2023 Gov. Jared Polis signed Senate Bill (SB) 23-172, 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.
Prior to the passage of the POWR Act, and beyond the federally protected classes (which include race, color, sex, age, national origin, religion, pregnancy, genetic information, disability, and veteran status), Colorado regulated discrimination on the basis of marital status, referrals, engaging in lawful activity off the premises, employee discussions about wages, and sexual orientation.
Colorado also prohibits any requirement for employees to submit photographs, and prohibits posting signs regarding refusal of service.
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.
Marriage 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.
No person may post or permit to be posted in any place of public accommodation any sign which states or implies the following:
WE RESERVE THE RIGHT TO REFUSE SERVICE TO ANYONE
State
Contact
Colorado Civil Rights Division
Regulations
Colorado Revised Statutes Title 24, Article 34
www.lexisnexis.com/hottopics/michie/
Federal
Contact
Equal Employment Opportunity Commission (EEOC)
Regulations
See applicable discrimination topic.
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