Bill advances to lower threshold for workplace harassment in Colorado

When a cook at Marie Evenson’s job repeatedly grabbed her around the waist, she reported him to a manager. One week later, she was fired for not “fitting in” to the workplace environment.

Evenson met with a lawyer to discuss her legal options, but was told she didn’t have a case. Evenson said her lawyer claimed her experience didn’t meet the state’s “severe or pervasive” standard to qualify as unlawful harassment, meaning the behavior was not bad or frequent enough.

Because of this, when Evenson managed a catering office a few years later, she ignored the owner’s constant inappropriate comments. And when the owner one day ran his hand up Evenson’s inner thigh, she quit the job, but didn’t bother pursuing legal action.

“I already knew Colorado’s laws were weak,” Evenson said. “People who had far more awful things happen than me — such as routine threats of rape, questions about their sexual experiences, constant barrages of sexually explicit comments — they hadn’t been able to bring cases.”

Evenson shared her story in written testimony on Senate Bill 172, which seeks to lower the threshold for workplace harassment in Colorado.

If made law, the bill would update the state’s definition of harassment and specify that harassment does not need to be “severe or pervasive” to constitute a discriminatory or unfair practice.

The bill would also add marital status as a protected class, dis-incentivize the use of unlawful non-disclosure agreements, and prohibit employers from refusing to accommodate employees if they have a disability that “has a significant impact on the job.”

The bill passed its first vote in the Senate Judiciary Committee on Wednesday. Lawmakers voted 3-2 along party lines, advancing the bill to the Senate Appropriations Committee, with Democrats in support and Republicans in opposition.

“We’re working to change the culture,” said bill sponsor Sen. Faith Winter, D-Westminster. “No Coloradan should face harassment or discrimination at the workplace, yet our state still lacks adequate policies to protect our workers and hold bad actors accountable.”

The bill’s advancement came in spite of strong pushback from the business industry.

Nearly three dozen organizations registered against the bill, including the Colorado Chamber of Commerce, Colorado Municipal League, Colorado Retail Council, Economic Development Council of Colorado, and the governments or chambers of commerce of Denver metro, Colorado Springs, Fort Collins, Westminster, Adams County, Douglas County and El Paso County.

Loren Furman, CEO of the Colorado Chamber of Commerce, said she “strongly discourages” any harassment in the workplace, but believes the bill would result in “frivolous claims and expensive lawsuits.”

Brooke Colaizzi, a lawyer representing the chamber, said removing the “severe or pervasive” requirement would make the standard for harassment too low for employers to take preemptive and corrective action.

“We must avoid a standard where an employer can be dragged into court for a single offensive comment,” Colaizzi said. “The reason for that standard is that employers must have an opportunity to identify and to fix harassment. Otherwise, they’re being held liable for something that they can’t control. The ‘severe or pervasive’ creates that threshold.”

Colaizzi also raised concerns about a provision of the bill that requires employers to keep a record of all oral or written complaints brought to them in order for the employer to assert an affirmative defense to harassment claims. Colaizzi said this would create “endless mini trials” disputing over whether or not the employer’s records were accurate.

While Wednesday’s hearing featured testimony from numerous business leaders lamenting potential litigation as a result of the bill, more people testified about experiencing workplace harassment or representing clients who, they said, were unable to get legal justice after suffering discrimination for their gender, race or disability.

Around 38% of women have experienced sexual harassment in the workplace, NPR reported. In 2021, a Gallup poll found that one in four Black and Hispanic workers in the U.S. had been discriminated against at work in the past year.

Proponents of the bill said removing the “severe or pervasive” standard would inspire more victims of harassment to seek legal action and eliminate the notion that employees should tolerate some level of harassment at work. It would also address current law being inconsistently enforced by judges making different rulings about what constitutes “severe or pervasive,” they said.

Iris Halpern, a lawyer representing the Colorado Women’s Bar Association, said the bill would not change the fact that employers have to be proven liable for negligence in court for harassment cases. Halpern also said the reporting requirements align with federal regulations from Title VII of the Civil Rights Act.

“In order to change the culture, there does need to be accountability,” Halpern said.

Nineteen organizations are backing the bill, including the Colorado Women’s Bar Association, ACLU of Colorado, Colorado Trial Lawyers Association, Coloradans For Legal Freedom, Colorado Plaintiff Employment Lawyers Association and Disability Law Colorado.

The federal “severe or pervasive” standard for unlawful harassment was established by the U.S. Supreme Court more than three decades ago. Some sates have eliminated the “severe or pervasive” threshold, including New York, California and Maryland.

This is the second time Colorado lawmakers have tried to pass this bill, nicknamed the “Protecting Opportunities and Workers’ Rights Act.” The last effort, Senate Bill 21-176, passed the Senate in 2021 but was killed by the House Judiciary Committee.

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