POWR Act Expands the Colorado Anti-Discrimination Act Applicable to Employment Discrimination Claims and Practices

Big changes to Colorado employment law are here! The law governing employment discrimination practices and claims, nondisclosure agreements, and employer recordkeeping requirements in Colorado has changed. 

On August 7, 2023, the Protecting Opportunities and Workers’ Rights Act (POWR) took effect, expanding discriminatory and unfair employment practices under the Colorado Anti-Discrimination Act (CADA). Here are three key takeaways from the new law:

POWR changes the law applicable to employment discrimination and unfair work practices and claims as follows:
  • “Harassment” is now defined as unwelcome conduct directed at an individual or group in, or perceived to be in, a protected class, where the conduct is subjectively offensive to the individual and objectively offensive to members of the same protected class as the individual. Harassment constitutes the basis for a charge under CADA.
  • Individuals no longer need to prove the creation of a hostile work environment by an employer to assert a harassment claim.
  • Individuals no longer need to prove “severe” or “pervasive conduct” to establish a discriminatory or unfair employment practice.
  • Marital status is now a protected class. 
  • Previously, an employer could legally discriminate against a disabled individual if the disability had a significant impact on the job and the employer could not accommodate the disability even if the individual was otherwise qualified for the job. POWR changes this exception. Employers may no longer assert that the individual’s disability has a significant impact on the job as a rationale for a discriminatory practice. The exception is now limited to situations in which there is no reasonable accommodation that would allow the individual to satisfy the essential functions of the job.
  • If an individual meets the requirements for asserting a harassment claim, a supervisor may assert an affirmative defense to the claim, but only if the employer has a program in place designed to prevent and deter harassment and protect employees from harassment, takes prompt and reasonable action to investigate and act on claims under the program, and notifies its employees of the existence of program; but can prove the claimant failed to take advantage of the program.
  • POWR voids all new nondisclosure agreements as well as nondisclosure agreements renewed after August 7, 2023, that limit an employee’s or prospective employee’s ability to discuss or disclose discriminatory or unfair employment practices. Employers who seek to enforce non-compliant nondisclosure agreements may be liable for damages in the amount of $5,000 per violation as well as punitive damages, attorney’s fees, and costs. 
  • POWR changes employer recordkeeping requirements. Employers are now required to maintain personnel and employment records for at least five years and to maintain complaints of discriminatory or unfair employment practices in a designated repository. This includes records of all written and oral complaints of discriminatory or unfair employment practices. The record must contain the date of the complaint, the complaining individual’s name (unless made anonymously), the alleged perpetrator’s name, and the substance of the complaint. These records are considered personnel records.

All employers should update their employee handbooks and personnel policies to address these changes. Employers should also review and revise the language used in all new and renewed nondisclosure agreements and implement POWR’s recordkeeping requirements. BHGR’s employment attorneys are happy to assist you in these compliance efforts or to answer any questions you may have about POWR.

Want to learn more?  Read the full text of the new law here. Questions? Don’t hesitate to reach out to our employment group.

This alert is informational only. The presentation or use of this information does not in any manner constitute an attorney-client relationship between BHGR and the website user. While the information on this site concerns legal issues, it is not intended as legal advice or a substitute for particularized advice from your own legal counsel. 

Author: Staff Writer Heidi Potter