June 22, 2023

Important Changes to Colorado Anti-Discrimination Laws

The POWR Act, set to take effect on August 7, 2023, introduces several significant amendments to the Colorado Anti-Discrimination Act (CADA). These changes aim to strengthen protections against discriminatory practices in the workplace. Here is a summary of key provisions of the POWR Act and their implications. 

  1. Expanded Definition of Discriminatory Practices: The POWR Act eliminates the previous “severe and pervasive” legal standard for establishing a discriminatory or unfair employment practice under CADA. Instead, any unwelcome conduct that is subjectively and objectively offensive will be considered discriminatory. This broadens the scope of protection for employees. 
  2. Supervisor Liability: Under the new law, an employer can no longer rely on an affirmative defense when a supervisor engages in unlawful harassment. The employer must have a program in place that is reasonably designed to prevent, deter, and protect employees from such harassment to avoid liability. This places greater responsibility on employers to proactively address and prevent workplace harassment. 
  3. Modified Disability Discrimination Analysis: The POWR Act changes the approach to disability discrimination by focusing on whether an accommodation would enable an individual to fulfill the essential functions of their job, rather than assessing whether the disability significantly impacts the job. This shift emphasizes the importance of reasonable accommodations and inclusion in the workplace. 
  4. Marital Status as a Protected Class: The POWR Act introduces marital status as a protected class under CADA, with certain exceptions related to conflicts of interest. 
  5. Restrictions on Non-Disclosure Provisions: Non-disclosure or confidentiality provisions in employment agreements that limit an employee or prospective employee from discussing any alleged discriminatory or unfair employment practices will be deemed void unless specific notice, carve-out, and other provisions are included. Non-compliant agreements may result in penalties of $5,000 per violation. Moreover, the POWR Act establishes a private right of action for employees, allowing them to pursue actual damages, reasonable costs, and attorneys’ fees. Evidence of an employer’s non-compliant agreements with other employees may also support a claim for punitive damages.
  6. Enhanced Recordkeeping Requirements: The POWR Act mandates that employers maintain a designated repository for specific records related to written or oral complaints of discriminatory or unfair employment practices. These records, including the date of the complaint, identity of the complainant, alleged perpetrator, and substance of the complaint, must be retained as personnel records for five (5) years. This provision reinforces the importance of thorough documentation and accountability in addressing workplace complaints. 

The POWR Act introduces crucial changes to the Colorado Anti-Discrimination Act, enhancing protections for employees and imposing new responsibilities on employers. It is imperative for employers to thoroughly review and update their practices, policies, and agreements to ensure compliance with the new requirements before the August 7 effective date.