A Plethora of Employment/Human Resources Issues Facing Colorado Employers (But Nothing About the Lottery)

 

So, the story goes, after months and months of COSHRM Connection articles in 2025 covering the scintillating and cutting-edge legal and legislative issues facing Colorado employers, it was last month’s article covering the Worker Adjustment and Retraining Notification Act (“WARN”), which is a law that has been in place for more than 35 years, that drew the most “clicks” of any Connection article this year.  Such a result causes one to wonder if it was readers’ interest in WARN or whether it was the catchy title that referenced winning the Lottery (i.e., “Warn[ing] to all Lotto Winners”).  While this month’s Connection Article isn’t a WARNing to lottery winners, it will cover a number of issues facing Colorado employers. 

 

Colorado House Bill 25-312 Concerning Legal Protections For Transgender Individuals.  In 2021, Colorado passed the Gender Identity Expression Anti-Discrimination Act that added “gender expression” to the list of protected classifications under the State’s anti-discrimination laws.  Colorado law defines “gender expression” as “an individual’s way of reflecting and expressing the individual’s gender to the outside world, typically demonstrated through appearance, dress, and behavior.”

 

Recently, on May 16, 2025, Governor Polis modified this law when he signed the Kelly Loving Act.  The Kelly Loving Act added to the above definition of “gender expression” by identifying that gender expression also includes, “…chosen name, and how the individual chooses to be addressed.” C.R.S. § 24-34-301 (9).  The Kelly Loving Act defines “chosen name” as, “a name that an individual requests to be known as in connection to the individual's disability, race, creed, color, religion, sex, sexual orientation, gender identity, gender expression, marital status, familial status, national origin, or ancestry, so long as the name does not contain offensive language and the individual is not requesting the name for frivolous purposes.” C.R.S. § 24-34-301 (3.5).

 

How does the Kelly Loving Act impact employers? The Colorado Anti-Discrimination Act makes it unlawful for an employer “to refuse to hire, to discharge, to promote or demote, to harass during the course of employment, or to discriminate in matters of compensation, terms, conditions, or privileges of employment” against an individual based upon their gender expression. C.R.S. § 24-34-402 (1)(a)(I). So, the Act’s inclusion of “chosen name” means an employer can run afoul of the Colorado Anti-Discrimination Act if it makes an employment decision because of a person’s chosen name/how the individual chooses to be addressed or allows an employee to be harassed because of their chosen name/how the individual chooses to be addressed.

 

What does this look like in the workplace? Employers should use the name and pronouns a person has asked the employer to use and, of course, employers should not make any employment decision based upon a person’s gender expression, including their chosen name.

 

Potential Cases at the Supreme Court of the United States During the Upcoming Term. The U.S. Supreme Court may be asked to address what constitutes a “sincerely-held religious belief” in the context of employees requesting a religious accommodation from their employer.  In short, when an employee brings a claim against their employer for failing to reasonably accommodate the employee’s religious belief, the employee must show that they have a sincerely held religious belief that conflicts with a work requirement, that they informed the employer of this conflict, and that they were disciplined or suffered an adverse action for failing to comply. Once this is established, the burden shifts to the employer to prove that it either provided reasonable accommodation(s) or that any possible accommodation would cause undue hardship to the business or create a direct threat. 

 

In Does 1-2 v. Hochul, the Supreme Court could determine what an employee must prove to show that the employee’s religious belief is, in essence, “sincerely held.”  In a 2021 publication, the Equal Employment Opportunity Commission opined that “...like the religious nature of a belief, observance, or practice, the sincerity of an employee’s stated religious belief is usually not in dispute” and is “generally presumed or easily established.”  The EEOC further noted in that publication that “the individual’s sincerity in espousing a religious observance or practice is ‘largely a matter of individual credibility’” and that, “a sincere religious believer doesn’t forfeit his religious rights merely because he is not scrupulous in his observance.”

 

This case is being closely watched by organizations throughout the United States because there are still a number of immunization cases pending in courts.

 

The Supreme Court is also expected to issue a ruling during 2026 in the case of Cook County III v. Nawara, where Supreme Court may determine whether the Americans with Disabilities Act protects nondisabled individuals. In this case, the employee, who did not identify his disability status, alleges that he was required to submit to a medical examination and inquiries that weren’t job-related nor were consistent with business necessity, as required by the ADA.  The ruling in this case may broaden who can bring suit under the ADA.

 

So, while there are no tidbits for Lotto winners, there’s a whole bunch of things facing companies in Colorado during this season.