Colorado SHRM Opposes SB 21-176, Protecting Opportunities and Workers' Rights (POWR) Act

By Colin A. Walker, Fairfield and Woods, P.C.

On March 22, 2021, the Board of Directors of the Colorado Society for Human Resource Management (COSHRM) voted to oppose SB 21-176, “Protecting Opportunities and Workers’ Rights (POWR) Act.” This bill, if enacted, would make it much easier for employees to sue employers for discrimination, harassment and retaliation, and much more difficult for employers to defend themselves. COSHRM finds the following provisions particularly problematic:

• Employees need not go through the charge and investigation process of the Colorado Civil Rights Division (CCRD) before filing suit, but rather may file a complaint in court 14 days after serving a written demand on the employer. COSHRM feels strongly that the CCRD process, which has existed for decades and is patterned on the EEOC process, has significant benefits, including fostering prompt settlements, and should be a required part of the process.
• Discrimination laws would apply to contractors and subcontractors which, in most cases, are in a substantially different position from employees. Under current law, contractors such as vendors, can, under some circumstances, assert harassment claims against their own employers, or on an aiding and abetting theory against a company which tolerates harassment. This bill, however, would allow contractors and subcontractors to assert claims just like employees. 
• An employer would not be able to assert a defense that an employee failed to avail himself/herself of a policy prohibiting harassment unless it could show that it had an anti-harassment policy which has had “documented success” and that no employee has made a complaint of retaliation within the last 6 years. Documented success is a vague term which would be difficult to establish. Requiring an employer to show that there has not been a retaliation complaint in 6 years is unreasonable and prone to abuse by employees who seek to deprive employers of the defense.
• One incident would be enough to support a hostile work environment regardless of whether it was severe and pervasive. While some cases have held that one extremely serious incident may, under some circumstances, support a claim, this provision is unduly burdensome on employers and could encourage meritless claims.
• The definition of hostile work environment would be expanded and extend to anything that “undermines a person’s sense of well-being.” Like the previous provision, this would unreasonably expose employers to liability for minor incidents and encourage meritless claims.
• It would be a discriminatory employment practice for an employer to fail to conduct an investigation of a harassment complaint. While, in most cases, employers should investigate complaints of harassment and risk adverse decisions in litigation by failing to do so, the decision not to investigate a complaint, in and of itself, should not be illegal. It should be up to the employer to decide whether to investigate a particular claim, for example in cases that the employer believes does not warrant a full investigation.
• Confidentiality agreements would be prohibited in settlement agreements except for the amount of a settlement payment and when requested by the employee. This would discourage employers from entering into settlement agreements, which are often beneficial to employees and would increase litigation costs.
• The bill would limit an employer’s ability to make inquiries regarding disabilities and require medical examinations in ways which are inconsistent with the federal Americans with Disabilities Act, which has worked for many years, and would create an even more confusing and unwieldy process in Colorado.

While COSHRM agrees that workers should not be subjected to harassment, discrimination, retaliation and other unlawful conduct, there are already robust laws and reasonable procedures in place to protect workers from such conduct. COSHRM believes that there should be a level playing field in any dispute. This bill, however, is likely to favor claims by employees while eliminating some of the procedures which have protected employers from meritless claims and benefitted employers and employees by encouraging settlements.

The bill was scheduled for a hearing before the Senate Judiciary Committee on Thursday, March 25, 2021, but the hearing has been postponed and a new hearing has not been set yet. More information can be found at: https://leg.colorado.gov/bills/sb21-176.

Questions? Contact COSHRM's Legislative Director, Colin Walker.