Originally published in Colorado Politics Jun 7, 2021
We all believe we are reasonable people. And most reasonable people recognize “severe or pervasive” harassment when they see it in their workplace. It is much harder to recognize “unwelcome conduct that would be offensive to a reasonable person with similar characteristics.” Yet, proponents of Senate Bill 176, the Protecting Opportunities And Workers’ Rights Act, believe that the broader definition is necessary. They expect the measure to deliver workplaces free of harassment. That is a big promise. Does it acknowledge the risks?
Instead of preventing conduct that is likely intentional, SB 176 centralizes a deeper conflict-resolution process at the state level. If passed, the Colorado Civil Rights Division must determine whether an exchange that could be unintentional deserves penalties or serious sanctions in civil courts.
Who will decide who is reasonable? The uncertainty from these broad and vague definitions will have costly consequences.
All employers, both private and public, expect the bill will lead to significant increases in the filing of complaints. What is especially troubling is that the process, if heavily exercised by even a few employees, will disrupt the widespread efforts to build bridges between employees and management. Interpersonal relationships lead to more opportunity and career growth. In particular, mentoring relationships must exist not only as a line item in a mission statement or on paper. These must exist between people to move us closer to inclusion — especially for women and minorities. We can all agree that an undesirable outcome would be an unsaid practice of “the less you say, the less you engage, the better.”
Another glaring consideration is that we cannot risk overburdening small firms. They are already facing overwhelming regulations that are a poor fit for their unique contexts.
SB 176 expects small firms to access even more human resources and legal support than they are already struggling to afford. Growing regulatory demands continue to push their margins and their viability. We risk losing those businesses that add vitality to our communities. What is more, we risk losing those job opportunities that offer unique work-based learning and closer interpersonal environments that many Colorado workers treasure.
A no less serious concern is SB 176’s challenge to independent contractors. The poorly executed effort to protect them from harassment would threaten the ease of B2B or business-to-business relationships that smaller firms depend on to compete.
It also suppresses and threatens an option struggling to emerge. The independent contractor model is a popular and promising alternative for those who need flexibility, including women, care givers, and those with special needs.
It is an accessible entrepreneurial path for a variety of professionals and creatives. It allows them to find their way to engage in our economy and establish a clientele that values their unique skills and contribution.
Multiple studies have shown that 70% to 85% of independent contractors want to continue to work as independent contractors.
There has been strong pushback on repeated efforts to classify them as employees. Proponents of SB 176 claim that these concerns are overblown. Yet the director of CCRD has shared that this could open the floodgates for an increased caseload. One that they are ill-prepared for.
Addressing harassment should be a combined effort. In our workplaces, conflict resolution is a complex and sensitive management practice that looks different for every organization. No firm functions well with strife. In small firms, accountability is close, making resolution an urgent imperative. And in large firms, it is a business art and the focus of innovation by an industry of professionals — human resources management. Recent popular movements have accelerated efforts to increase awareness and understanding.
In the courts, while the current interpretation of “severe or pervasive” may not adequately address circumstances that deserve remedy, a suitable alternative has been elusive. As society continues to deliberate what harassment is and what it is not, we must agree on a clear line. Without clear lines, we invite litigation. What will we as people working together do to resolve conflicts when and where they arise, and what do we want the state to do? What universal code of conduct for individuals from all backgrounds, abilities, and disabilities will guide its role?
Rejecting SB 176 does not mean accepting harassment in our workplaces. Instead, it means we acknowledge that reducing the remaining harmful or destructive patterns of interpersonal exchanges is more complicated than instituting a more powerful state-enforced process with the possibility of litigation and penalties.
Which Workplace Behaviors Should be Against the Law?