SB176 Protecting Opportunities And Workers’ Rights Act
Prime Sponsors: Senators Winter & Pettersen and Representatives Lontine & Gray
Status as of June 7, 2021 “Postponed Indefinitely” or Failed
What is the problem that SB176 seeks to solve?
Reducing or eliminating harassment is part of a broader societal goal to support equal opportunity for women and racial minorities and, more recently, a growing number of other classes that special interest groups seek to protect legally. The optimal outcome is success in job markets and functional inclusion in workplace cultures.
SB176 is an expansion of the Colorado Civil Rights Act. The Colorado Civil Rights Division enforces this legal framework, guided by Colorado statutes. Some of its provisions exceed those in the applicable federal laws.
Questions worth asking
Is expanding an already complex and sweeping law an effective solution?
Too many questions are left unanswered.
How do we define harassment? How do we measure the prevalence of harassment? How do we measure success? How do we determine if harassment has occurred and if it is discriminatory? And can we hold the employer responsible? Should we hold the employer responsible? Are legal remedies or regulatory mandates and the threat of penalties a fair and effective solution? Are there negative secondary consequences?
A workplace free of harassment is a right, and anti-discrimination laws are a tool for positive change. Harassment continues to be a problem because current laws allow employers to escape accountability. Stronger and more broad provisions to authorize the state’s oversight over employers will reduce harassment and make workplaces more welcoming to all workers.
We have pursued the reduction or eradication of harassment through anti-discrimination laws for decades and can show little evidence that it has been successful. Employers have implemented extensive harassment training protocols. Yet measuring the prevelance of harassment yields widely ranging reports. These indicate anywhere from 25% to 85% of women report having experienced sexual harassment in the workplace.1
As proponents seek to expand what harassment is, they broaden the scope with vague terms. Expansions aim to make employers responsible for circumstances and conduct that may be beyond their control. Ambiguity creates litigation risk and raises the level of resources devoted to responding to complaints that often lack merit. There are vast costs to management that are difficult to measure or track as firms must be vigilant that they are compliant with the intricate terms.
These all have an unequal impact on businesses. Small firms and vulnerable sectors may lack the additional resources necessary for human resource management and legal support.
SB176: The points below refer to the bill as amended and passed by the Senate, May 27th2
- Expands the definition of harassment
- Current law as practiced recognizes harassment as conduct that is “severe or pervasive.” SB176 has sought a more expansive definition, including “unwelcome conduct that would be offensive to a reasonable person with similar characteristics.” These subjective terms that could cover one unintentional slight increase the likelihood of frivolous complaints and uncertain, drawn-out determinations. The definition is confusing and hard to interpret by even legal professionals, making it a poor guide for employers and managers in practice.
- Adds caregiver status and marital status as a basis for protection from discriminatory or unfair employment practices.
- Caregiver status would be unique among the minority classes that the Act seeks to protect. Instead of being based on gender, race, or ethnicity, it is a temporal status or an occupation. Including caregiver status would create vulnerabilities and dilute the law’s effectiveness for the primary classes that the law was intended to protect. It would open the possibility of including other occupations.
- Extends protection to independent contractors.
- Proponents seek to protect independent contractors from harassment. Independent contractors are in a unique class. They do not fit in this statute. The debate over the classification of workers as employees or independent contractors is a very active and far-reaching debate at both the state and the federal levels.
- The employment provisions of CADA (the Colorado Civil Rights Act) are built on the foundation of the employee/employer relationship. Independent contractors just don’t fit.
- Further, efforts to increase the potential of liability through this statute would threaten the ease of doing business for small firms that depend on independent contractors to compete. It would also threaten an option that is growing more popular for workers in all circumstances and unique life circumstances to work as a solopreneur.
- Extends from 6 months to 300 days the time limit to file charges
- Penalizes employers for noncompliance to what may be unclear standards of prompt investigation and remedial action
- Includes problematic restrictions and provisions related to nondisclosure agreements
- Mandates all employers with 20 or more employees provide a training program
- Lack of compliance with the section requiring training, notices, and record-keeping carries a potential fine of $500 to $10,000 per violation.
- The law is effective 90 days after the General Assembly adjourns, subject to petition.
Most employers actively pursue successful workplace cultures that welcome and support all employees by building professional interpersonal relationships and trust. This is a living process. The state’s process and an aggressive application of anti-discrimination laws increase distrust and an antagonistic dynamic between employees and management, which is not conducive to positive change.
1Select Task Force on the Study of Harassment in the Workplace, EEOC, Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic
2The introduced version of the bill included several provisions that sponsors struck before Senate passage due to strong opposition, including:
- Allowing a claimant to circumvent the process as defined in the Colorado Anti-Discrimination Act through CCRD, the Colorado Civil Rights Division, and file a civil action directly in a state or county court.*
- Broadening the definition of a hostile work environment as anything that “undermines a person’s sense of well-being.”
- Exclusions for state employers through the CGIA, the Colorado Governmental Immunity Act.
*It is worth recognizing why advocates included this provision in the introduced bill. Current law requires exhausting the state adjudication process through CCRD before filing charges in a court of law. There has been frustration with the performance of the Division to process claims in a reasonable amount of time. Bi-partisan support for HB18-1256 validated the role of CCRD as a sensible approach to conflict resolution. The 2018 bill appropriated funding for a performance audit of the Division and its governing Commission. The State Auditor issued a report (summary) in September 2019 listing recommendations to improve operations. We should promote the changes needed to make the agency the effective conflict resolution tool it was meant to be. Read the State Auditor’s report here. SB176 may further overwhelm a process that is currently under review and should be a path to justice for severe grievances and legitimate discrimination claims.
Related resources for further reading
Bill Proposes Sweeping Expansion of Colorado Anti-Discrimination Statute, By Michelle Gomez, Jennifer Harpole, and Grace McGuire, Littler, Mar 15
Businesses knock Democrat-backed legislation on anti-discrimination, health insurance costs, By Pat Poblete, Colorado Politics, Apr 19, updated May 6
OPINION | Lawmakers’ double standard on workplace harassment by Loren Furman, senior vice president of state and federal relations for the Colorado Chamber of Commerce, Colorado Politics, May 28
CNBC (Video) One-fifth of American adults have experienced sexual harassment at work, CNBC survey says
Why Sexual Harassment Programs Backfire, by Frank Dobbin and Alexandra Kalev, Harvard Business Review
The Excuse Factory, Chapter 4: Fear of Flirting, 1997, by Walter K. Olson
The following require a paid subscription to Denver Business Journal. Three articles follow the progress of the legislation
Colorado workers could gain more leverage in filing discrimination claims against employers, Ed Sealover, Denver Business Journal, May 7
Colorado Senate OKs bill lowering bar for worker harassment lawsuits, Ed Sealover, Denver Business Journal, May 27
Colorado bill to lower bar for filing harassment lawsuits against employers dies, Ed Sealover, Denver Business Journal, June 8