“Severe and Pervasive” Standard and the POWR Act
On February 27, 2023, SB23-172, the Protecting Opportunities & Workers’ Rights Act (“POWR”) was introduced in the Colorado Senate.[1] The Act proposes significant and vast changes to employment discrimination and harassment law in Colorado, including eliminating the requirement that an aggrieved employee demonstrate that harassment is “severe and pervasive” – a national standard that has been applied in federal and state courts for many years. The “severe and pervasive” standard was viewed as a way weed out isolated incidents of behavior and harassment claims that are not sufficiently severe.[2] Now, proponents of the POWR act argue that the standard inadequately protects employees in Colorado who have been subjected to harassment in the workplace.
The POWR Act would also add martial status as a protected class, disincentivize 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 Act also requires employers to conduct an investigation of any claim raised regarding discrimination or harassment.[3] This means that even if a claim of harassment or discrimination would not have been substantiated, failing to investigate the claim would be a violation of the law.
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.[4] Opponents (including the Colorado business community) of POWR argue that removing the “severe or pervasive” standard opens employers to unjustified liability for isolated incidents.[5] Opponents also argue that the Act will lower the standard to the degree that employers will be unable to take preemptive and corrective action.[6]
A similar bill failed to pass the Legislature in 2021 and 2022 after stalled negotiations.[7] The POWR Act passed through the Senate Judiciary Committee in early April and has moved on to appropriations.[8] The Legislature is set to decide whether to enact the Act by early May 2023. Employers, human resource professionals, and employment lawyers should follow this bill carefully and be prepared to comply with it should it be enacted.
10th Circuit to Consider Retaliation Test
In February 2022, the United States District Court for the District of Kansas ruled that the plaintiff-employee in Frank v. Heartland Rehab. Hosp., LLC, 2022 WL 486793 (D. Kan. Feb. 17, 2022) failed to show that her employer retaliated against her when it told her to “quit or be fired” after she complained that a male co-worker was making unwanted sexual advances toward her.[9] In doing so, the district court modified the standard for determining what constitutes “adverse employment action” in a retaliation claim under Title VII of the 1964 Civil Rights Act. The correct standard for the case was set forth by the U.S. Supreme Court in Burlington Northern & Santa Fe Railroad Co. v. White, 548 U.S. 53 (2006), which held that employers may be held liable for conduct that would discourage workers from raising a concern about discrimination or harassment. In Frank v. Heartland Rehab. Hosp., however, the district court ruled that to constitute an adverse employment action, the plaintiff must show that they experienced a “significant change in employment status . . . or a decision causing a significant change in benefits.”[10]
Ms. Frank appealed decision to the U.S. Court of Appeals for the 10th Circuit, arguing that the district court did not appropriately apply the standard for retaliation in considering whether Heartland’s allegedly retaliatory acts effected a significant change in Ms. Frank’s employment status or benefits. Instead, Ms. Frank and the EEOC (which was allowed to participate in the appeal process to support Ms. Frank) argued that the district court should have considered whether Heartland’s actions could have deterred a reasonable employee in Ms. Frank’s position from raising a harassment concern.[11]
On November 15, 2022, the 10th Circuit heard oral arguments in this case and will likely be issuing a ruling in the upcoming months.[12]
[1] https://www.fwlaw.com/insights/powr-bill-introduced-in-colorado-senate
[2] Id.
[3] Id.
[4] https://www.coloradopolitics.com/legislature/workplace-harassment-colorado-severe-pervasive-change/article_4b00c9ee-d48d-11ed-8583-03521d3f01ef.html
[5] Id.
[6] Id.
[7] https://cochamber.com/2023/04/06/what-were-watching-the-powr-act-sb-172/
[8] Id.
[9] https://news.bloomberglaw.com/daily-labor-report/former-hospital-worker-tees-up-retaliation-test-at-tenth-circuit
[10] Id.
[11] Id.
[12] Id.