Colorado POWR Act and YOU

Record Keeping Requirements

The Protecting Opportunities and Workers’ Rights (POWR) Act, signed into law June 7th, expands the Colorado Anti-Discrimination Act (CADA) and imposes new record-keeping obligations on Colorado employers:

• Employers must keep personnel or employment records for at least five years after either:
  • The date the employer made or received the record, or
  • The date of the personnel action the record pertains to, or the final disposition of a charge of discrimination or any related action.
• Employers must maintain an “accurate, designated repository” of all written or oral complaints of “discriminatory or unfair employment practices” under CADA Section 24–34–402(1)(a). The repository must include:
  • The date of the complaint,
  • The identities of the complainant and the perpetrator (if disclosed), and
  • The substance of the complaint.

Discrimination Law Updates

The POWR Act modifies CADA with the following key changes:

• Harassment Standard: Colorado no longer follows the federal “severe or pervasive” standard. Instead, conduct is considered harassment if it is:
  • Subjectively offensive to the individual alleging harassment, and
  • Objectively offensive to a reasonable individual who is a member of the same protected class.
  To be viable, the conduct must fall into one of these categories:
  • Submission to the conduct is explicitly or implicitly a term or condition of employment.
  • Submission to, objection to, or rejection of the conduct is used as a basis for employment decisions affecting the individual.
  • The conduct unreasonably interferes with work performance or creates an intimidating, hostile, or offensive working environment.
  Note: Petty slights, minor annoyances, and lack of good manners do not constitute harassment unless they meet the above criteria under the totality of the circumstances.
• Affirmative Defense Limitations: Employers can only assert an affirmative defense to a harassment claim involving a supervisor if:
  • The employer has a program designed to prevent harassment, deter future harassers, and protect employees.
  • The employer takes prompt, reasonable action to investigate or address alleged discriminatory or unfair employment practices and implements remedial actions when warranted.
  • The employer has communicated the existence and details of the complaint process to all employees (e.g., via a handbook or policy).
  • The employee unreasonably failed to use the reporting program.
• Disability Discrimination: The requirement that a disability must have “a significant impact on the job” to justify an adverse employment action has been eliminated. The new standard allows an adverse action only if:
  • There is no reasonable accommodation that would allow the individual to satisfy the essential job functions, and
  • The disability actually disqualifies the individual from the job.
• Marital Status Protection: All marital statuses are now protected under CADA, including marriage to a coworker (unless there is direct supervision).

Non-Disclosure Agreement (NDA) Requirements

The POWR Act imposes significant changes to NDA enforceability in the employment context. Employers are advised to have their NDAs reviewed by a licensed employment law attorney. These changes took effect on August 7th, 2023, and are not retroactive.