On June 6, 2023, Colorado's Governor Polis signed Senate Bill (SB) 23-172, the "Protecting Opportunities and Workers' Rights Act (POWR)," into law. This multi-faceted Act will create fundamental changes to employment law, specifically amending the Colorado Anti-Discrimination Act (CADA). The POWR becomes effective August 7, 2023, and is summarized below.
The POWR removes the "severe or pervasive" standard in asserting a harassment claim, with an explanation that the existing harassment framework created by the judiciary is not sufficient. Specifically, the POWR says the "'severe or pervasive' standard created by courts to determine if harassment at work is a discriminatory or unfair employment practice does not take into account the realities of the workplace or the harm that the workplace causes."
Under the POWR, "harass" or "harassment" is broadened and redefined as: "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 ..." Again, evidence of severity or pervasiveness is no longer required. However, any conduct and/or communication must be both subjectively offensive to the individual alleging harassment and objectively offensive to a reasonable individual who is a member of the same protected class. The POWR...
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