Update applicable to:

All employers in Colorado except one specific provision outlined below, which does not apply to smaller employers

What happened?

Governor Polis signed the Protecting Opportunities and Workers’ Rights Act (the POWR Act), which changes key legal standards related to workplace harassment. The law is not retroactive. It applies to employment practices occurring on or after the effective date of the law, which is 90 days after the adjournment of the Colorado General Assembly. That means the effective date of the law is August 7, 2023.

What are the details?

The amendments to the law make changes to the following existing standards:

• Eliminating the well-established common law requirement that workplace harassment be “severe or pervasive” to be unlawful under the Colorado Anti-Discrimination Act (CADA) and establishing a new unlawful workplace harassment definition; (Section 24-34-400.2 (2), page 3)

• Limiting the enforceability of confidential non-disclosure agreements executed in response to complaints of “unfair” or “discriminatory” employment practices; (Section 24-34-407, page 10)
• Broadening “marital status”-related protections under CADA; (Section 24-34-402, pages 4-6)
• More precisely aligning disability discrimination standards with the federal American with Disabilities Act (ADA) by striking the provision that a disability have a significant impact on the job or participation in training programs (Section 24-34-402, pages 4-6)
• Imposing new, heightened recordkeeping requirements for employers (Section 24-34-408, pages 12-13)

All Colorado employers of all sizes are covered by CADA and the POWR Act’s amendments except smaller employers for the following:

“24-34-402. Discriminatory or unfair employment practices affirmative defense. (1) It is a discriminatory or an unfair employment practice: (1)(h)(I):For any employer to discharge an employee or to refuse to hire or promote a person solely on the basis that such employee or person is married to or plans to marry another employee of the employer; subsection (1)(h)(I) does not apply to employers with twenty-five or fewer employees.”

For more information, please see the links below:

Protecting Opportunities and Workers’ Rights Act

Law Firm Article 1, Article 2, Article 3

What do employers need to do?

The Littler law firm advises employers that to preserve their affirmative defense to harassment claims, employers should ensure they have established and implemented a program to prevent and deter harassment, and to investigate any harassment claims that arise in the future.⁶ Employers should also consider revising agreements with nondisclosure provisions to comply with the specific rules laid out in the new law. Further, companies will need to implement new processes to retain personnel files and employment records for five years in compliance with the law’s record-keeping rules.

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