Colorado has enacted legislation (Senate Bill 23-172), which prohibits discrimination based on marital status, redefines harassment under state law, clarifies the protections for individuals with disabilities, and extends recordkeeping requirements. The changes take effect Aug. 7, 2023.
The details
Marital Status
Under existing law, employers are prohibited from discriminating against any qualified individual because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, age, national origin, or ancestry.
Senate Bill 23-172 amends the list of protected characteristics to also include marital status.
Harassment
Senate Bill 23-172 redefines harassment under state law as unwelcome conduct or communication related to an individual’s membership in a protected class where submission to the conduct is a condition of the individual’s employment, is used as a basis for employment decisions or interferes with the individual’s work or would objectively be offensive to a reasonable person in the same protected class.
The law makes clear that harassment doesn’t need to be severe or pervasive to constitute a discriminatory or unfair practice under state law. Petty slights or annoyances or lack of good manners don’t constitute harassment, unless when taken into consideration with the totality of the circumstances, the conduct meets the standards set in the law. See the text of the law for details.
Senate Bill 23-172 also establishes that an employer may be able to assert as a defense in response to a claim for harassment that:
- The employer has a harassment prevention program through which:
- The employer has communicated the existence and details of the program to both supervisory and nonsupervisory employees; and
- The employee has unreasonably failed to take advantage of the employer’s program.
Disabilities
Under state law, employers must provide reasonable accommodations to individuals with disabilities, unless there is no reasonable accommodation that the employer can make that would allow the individual to satisfy the essential functions of the job.
Senate Bill 23-172 eliminates the ability of an employer to assert that an individual’s disability has a significant impact on the job as a rationale for being unable to accommodate an individual who is otherwise qualified for the job.
Recordkeeping
Under Senate Bill 23-172, employers must retain personnel or employment records for at least five years from the later of:
- The date the employer made or received the record.
- The date of the personnel action about which the record pertains or the final disposition of a discrimination complaint.
The law defines personnel or employment records as:
- Requests for accommodation.
- Employee complaints of discriminatory or unfair employment practices.
- Application forms submitted by applicants for employment.
- Records related to hiring, promotion, demotion, transfer, termination, rates of pay or other terms of compensation; and
- Selection for training or apprenticeship, and records of training provided to or facilitated to employees.
Employers must maintain an accurate, designated repository of all written or oral complaints of discriminatory or unfair employment practices. The repository must contain the:
- Date of the complaint.
- Identity of the complaining individual, unless the complaint was made anonymously.
- Identity of the accused; and
- Substance of the complaint.
Other Changes
The law also prohibits a non-disclosure agreement between an employer and an employee from limiting the ability of the employee to discuss or disclose any alleged discriminatory or unfair employment practice unless certain requirements in the law are met. Any employer that includes a nondisclosure provision that violates the requirements could be liable for actual damages and a fine of $5,000 per violation.
Next steps
- Review policies and practices to ensure compliance with Senate Bill 23-172.
- Train supervisors on the changes made by Senate Bill 23-172.
Please contact your HR Business Partner with any questions.
Thank you,
ADP