Summer Associate Stephanie Wise contributed to this advisory.
The Protecting Opportunities and Workers’ Rights (POWR) Act will take effect in Colorado on Aug. 7, 2023, and will apply to employment practices that occur on or after Aug. 7, 2023, subject to referendum petition.
For Colorado employers, the key takeaway from the POWR Act is that the harassment standard is no longer “severe or pervasive.” As a result, employees can bring harassment claims more easily—and even from a single occurrence. To help protect their business and potentially mitigate their risk of such claims, employers must implement a program to prevent harassment.
Under the POWR Act, a harassment prevention, deterrence and protection program is an employer’s only available affirmative defense against a harassment claim.
If an employee brings a claim for harassment, an employer’s ability to fight back and defend itself has become more challenging. Based on this new law, an affirmative defense to a harassment claim is only available if the employer demonstrates they have a program in place that is “reasonably designed to prevent harassment, deter future harassers, and protect employees from harassment.” The following criteria for the program must be met:
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