Colorado employers have proven their commitment to equity in the workplace, protecting employees from harassment or discrimination and ensuring their well-being. This remains paramount in not only providing safe work environments, but also improving engagement and longevity.

In August, this takes on a whole new meaning with implementation in Colorado of the Protecting Opportunities and Worker’s Rights (POWR) Act.

When an employee uses the term “harassment” or “discrimination,” it provokes a closer look into the details to determine if it rises to the unlawful territory requiring more serious personnel actions or retraining needs to occur.  In the
past, certain elements had to be met for a violation of law to occur. With POWR, these terms take on different meanings with different thresholds.

In a nutshell, employers must consider new requirements:

Enhanced protections against discrimination by expanding the scope of protected classes defined in the Colorado Anti-Discrimination Act to include marital status.

Redefined standards of harassment that remove requirements conduct be “severe or pervasive” and instead require only the conduct be “unwelcomed.” The act states harassment “means 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 … .”

A new definition of a “reasonable person” as a “reasonable individual who is a member of the same protected class.” This means if an employee finds conduct or communication “subjectively” offensive, a reasonable individual from the same protected class must find the conduct or communication “objectively” offensive.

Investigative procedures. In determining the level of misconduct, employers must determine the frequency of the conduct or communication, recognizing a single incident could rise to the level of harassment; how many individuals engaged in the conduct or communication; the type or nature of the conduct or communication, understanding that even though the conduct or communication was acceptable to the individual at one time, it could become unwelcomed by one or more of the participants. Additionally, the duration and location must be established, along with a determination if the conduct or communication was threatening. Further, it must be revealed if epithets, slurs or stereotypes were used that are humiliating or degrading to an individual or group of individuals. Finally, it also must be determined whether a power differential exists between the accuser and accused.

Personnel and employment record keeping for at least five years. With regard to complaints of discriminatory or unfair employment practices, employers must maintain those records in a designated repository. This must include “the date the employer made or received the record or the date of the personnel action about which the record pertains or the final disposition of a charge of discrimination or related action, as applicable.”

Repository information of all written or oral complaints of discriminatory or unfair employment practices, including the date of the complaint, the identity of the complaining party if the complaint was not made anonymously, the identity of the alleged perpetrator and substance of the complaint. These records aren’t considered public and may only be accessed by proper authorities.

Non-disclosure and separation agreements that include specific wording that “expressly states that it does not restrain the employee or prospective employee from disclosing the underlying facts of alleged discriminatory or unfair employment practice” to certain individuals.
In addition, the parties must attest the agreement complies with POWR.

Now that we know the requirements, how do human resource professionals  protect businesses and employees? We review written and unwritten policies to ensure we can defend the actions and practices of all our employees, but especially our leaders. If you haven’t already, it’s time to establish programs that are “reasonably designed to prevent harassment, deter future harassers and protect employees from harassment.”

To be effective, the program must:

Ensure employers take consistent, prompt and reasonable actions to investigate all complaints of discrimination or unfair employment practices.

Take appropriate action in response to complaints.

Inform employees of the existence, details and requirements of the program. This includes how employees take advantage of the program and who to notify.

Require training of all supervisory employees to reinforce the requirements and provide the necessary tools to recognize unacceptable behaviors and when an employee raises concerns that must be investigated.