Colorado workers deserve effective protections against harassment, discrimination, and retaliation, and that is what a measure now before the legislature — Senate Bill 176, the Protecting Opportunities and Workers Rights (POWR) Act — would do.
The POWR bill would significantly improve protections against harassment in the workplace; extend protections to independent contractors, caregivers, and older workers; and restrict the ability of serial harassers to hide behind non-disclosure agreements. It would do all of this while ensuring that Colorado businesses can continue to succeed.
Our organization, the Colorado Plaintiffs Employment Lawyers Association, is the largest bar association of employment civil rights lawyers in Colorado. We believe that it is everyone’s best interests to ensure that equality of opportunity in the workplace is not undermined by discrimination, harassment, or retaliation. We also believe that it is important for Colorado employers to have clear guidelines to promote their success.
The POWR bill would achieve these goals. For too long, sexual harassment victims have lacked effective protections under anti-discrimination laws. Because of nearly impossible requirements created by judges, victims of sexual harassment at times have been prevented from even getting to tell their story to a jury.
These standards have prevented claims by a woman whose supervisor grabbed her buttocks with two hands in front of her co-workers and was subsequently convicted of a misdemeanor for such acts, and by a female 911 dispatcher cornered by a coworker (later convicted of sexual assault) who groped her stomach, put his hand up her dress, and “fondled” her bare breast – all while she protested and was trying to answer emergency calls.
These judge-created standards are especially dangerous given that at least four out of five women in the U.S. has experienced some form of gender- or sex-related harassment in their lifetime.
The POWR bill addresses this issue by recognizing the obvious: A single egregious incident of unwelcome sexual harassment in the workplace can forever change the work environment for the victim.
Further, an ever-growing portion of our society lacks the basic protections of Colorado and federal anti-discrimination laws, because they are characterized as “independent contractors.” As we emerge from the pandemic, more workers are shunning the traditional structures of employment and are instead being pushed into task based or “gig” positions. These workers are disproportionately women and minorities.
However, Colorado law has not kept up with this evolution and still requires that, in order to be protected from discrimination or harassment, a worker be a traditional “employee,” not an “independent contractor.”
The consequences of this gap in protection are substantial, as employers who control the work environment are not held responsible for even severe sexual harassment, so long as the victim is classified as an “independent contractor.” The POWR bill would address this issue by including independent contractors within the scope of Colorado workers protected from discrimination and harassment.
The bill also would ensure that caregivers are protected from discrimination and harassment and that the protections for older workers are expanded.
The issues that the POWR bill addresses are exacerbated by the ability of companies and harassers to use non-disclosure and non-disparagement agreements as a way to prevent the victims of discrimination and harassment from sharing their experiences with other victims, or warning others that may be exposed to a serial harasser.
Oftentimes, victims of sexual harassment are forced to agree to a non-disclosure or non-disparagement provision in order to resolve their claims while avoiding the re-victimization that comes with litigation. These provisions often insulate serial harassers, and allow them to victimize more vulnerable people.
The POWR bill would correct this power imbalance by limiting the use of non-disclosure and non-disparagement provisions to those circumstances where a victim first proposes it – recognizing that some victims will prefer that the incident never be made public.
For these reasons, we urge the Colorado General Assembly to vote in favor of the POWR bill. Without the protections of POWR, Colorado workers will be left vulnerable to egregious discrimination, harassment, and retaliation.
Now is the time, as our economy emerges from the pandemic’s effects, to prioritize the safety and well being of Colorado’s most valuable assets, our unrivaled workforce.
Christine Breen, Rachel Ellis, Ian Kalmanowitz and Clayton Wire are members of the board of directors of the Colorado Plaintiffs Employment Lawyers Association.
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