Recap of Employment Law in the 2021 Colorado Legislative Session

June 24, 2021

By: Colin A. Walker

The 2021 Colorado Legislative Session was interesting and full of drama.  

The most significant employment bill, by far, was Senate Bill 21-176, the “Protecting Opportunities and Workers’ Rights (POWR) Act.” Originally, the bill would have substantially expanded discrimination and harassment laws and significantly narrowed employers’ defenses.

Significant provisions included:

  • Employees need not go through the charge and investigation process of the Colorado Civil Rights Division (CCRD) before filing suit, but rather may file a complaint in court 14 days after serving a written demand on the employer.  
  • Discrimination laws would apply to contractors and subcontractors.  
  • An employer would not be able to assert a defense that an employee failed to avail himself/herself of a policy prohibiting harassment unless it could show that it had an anti-harassment policy which has had “documented success” and that no employee has made a complaint of retaliation or harassment within the last 6 years.
  • One incident would have been enough to support a hostile work environment regardless of whether it was severe and pervasive.   
  • The definition of hostile work environment would have been expanded and extend to anything that “undermines a person’s sense of well-being.”   
  • It would have been a discriminatory employment practice for an employer to fail to conduct an investigation of a harassment complaint. 
  • Confidentiality agreements would have been prohibited in discrimination and harassment settlement agreements except for the amount of a settlement payment and when requested by the employee. 
  • The bill would have limited an employer’s ability to make inquiries regarding disabilities and require medical examinations in ways which are inconsistent with the federal Americans with Disabilities Act.

After intense opposition from business groups and others, the bill was substantially amended. As amended, the bill was passed by the Senate. However, it encountered stiff opposition in the House. The amended bill went before the House Judiciary Committee. Although many of the problematic provisions had been removed, many continued to have serious concerns about the bill, including the following:

  • A plaintiff would no longer have had to show that harassing behavior was “severe and pervasive” to prove a harassment claim, contrary to federal anti-discrimination laws.
  • Employers could not have defended against harassment claims on the basis that the employee failed to take advantage of an anti-harassment policy if any employee has filed an “admissible” charge of discrimination with the Colorado Civil Rights Division or the U.S. Equal Employment Opportunity commission within 6 years.
  • Independent contractors would have been protected by Colorado anti-discrimination laws.

The bill failed to pass out of the Senate Judiciary Committee, and thus the bill “died.” Had it been enacted, this bill would have been a very significant change in the law of discrimination and harassment in Colorado.    

House Bill 1232, the Standardized Health Benefit Plan Colorado Option, was passed. The law mandates certain reductions of premiums for individual and small group plans. If these reductions are not achieved, the Commissioner of Insurance may establish carrier reimbursement rates for healthcare providers. While not an “employment law,” per se, this law could affect employers and employees by decreasing the rates of individual and small group plans and possibly increasing the rates of large plans. 

House Bill 21-1108, the Gender Identity Expression Anti-Discrimination Act, was passed. It amends the definition of “sexual orientation” and adds definitions of the terms “gender expression” and “gender identity” to the list of protected classifications, making it clear that Colorado law prohibits discrimination against members of those classes.   

Senate Bill 21-039, Elimination of Subminimum Wage Employment, passed and is before the Governor. Current law allows employers who hold a special certificate from the Department of Labor that authorizes the employer to pay less than the minimum wage to employees whose are impaired by age, physical or mental disability, or injury from paying an employee below minimum wage. The bill phases out subminimum wage employment and requires employers to establish plans to phase out subminimum wage employment by July 1, 2025.  

Though exciting, overall, the 2021 legislative session was not as momentous as the last session from an employment law perspective, which saw the enactment of important employment laws, including paid family and medical leave legislation. In particular, the defeat of SB21-176 avoided major changes in discrimination and harassment laws. However, there is every reason to believe that significant workplace legislation will be introduced in the 2022 legislative session.