Bill Making It Easier To Sue For Workplace Harassment Hung Up In Final Days Of Legislature

Hart Van Denburg/CPR News
Downtown Denver near Union Station, June 4, 2021

It is the top legislative proposal for most Democratic women lawmakers: a bill that would broaden the definition of workplace harassment, update anti-discrimination laws, and allow more people to file claims against employers. But now, Senate Bill 176 is on shaky ground heading into the final days of the legislative session. 

Its most recent hearing ended after 2am with the House Judiciary Committee deciding to postpone its vote on what’s known as the Protecting Opportunities And Workers' Rights Act. That move came after two Democrats on the panel expressed reservations about the bill, which is opposed by Colorado’s largest businesses organizations. 

At the hearing, representatives from cities and counties and several state agencies also expressed serious concerns about doing away with the current legal standard, which requires that harassment must be “severe or pervasive,” and instead asks courts to consider the full circumstances of the alleged behavior. 

“I think we're going to lay it over right now, understanding that you will be continuing to work on some of the issues that have been discussed,” said Democratic Rep. Mike Weissman, chair of the Judiciary Committee, to the two sponsors. He supports the bill. 

“Members, we'll see what the next step is here.”

Even if the sponsors are willing to amend their bill enough to win over the holdouts, it's up against a looming deadline. Legislative leaders say they hope to adjourn the session no later than midweek. With most of Democrats' other big priorities crossing the finish line last week, this bill is one of the last major policies still in the process.

Democratic Senator Faith Winter, the bill’s main sponsor, said her own personal experiences are a driving force behind her effort to make it easier for people to file workplace harassment claims.

Winter was the first person to come forward to accuse former Democratic State Rep. Steve Lebsock of sexual harassment in 2017. She said the high profile nature of the allegations, which eventually resulted in his expulsion from the legislature and a new focus on workplace issues at the Capitol, have given her a unique platform.   

“I honestly get one or two calls a month from women throughout the state and all over the country that are experiencing harassment and asking what to do,” Winter said.

“So many of these women are told they don't have a case because it doesn't meet the standard of severe or pervasive and they're heartbreaking stories. And that's why we have to update the standard to something that reflects modern expectations.” 

Hart Van Denburg/CPR News
State Sen. Faith Winter at the Capitol on Tuesday, March 16, 2021.

Some opponents agree the previous definition does need updating, but they feel the bill’s language, that an employer can be liable in a harassment case based on how a reasonable person would judge the “totality of the circumstances of the conduct,” is too nebulous. They’re also concerned that employers could face liability for a single instance of harassment. 

“I don't want to necessarily use the word frivolous, but you have cases that may not rise to a certain level of harassment and small businesses that would still have to settle out those types of cases. It still means out-of-pocket costs for a small business,” saId Loren Furman who represents the Colorado Chamber of Commerce, one of the largest lobbyists on behalf of businesses.  “They have to pay for an attorney to investigate the claim, figure out the facts of the case, and then settle either way.”

The 27-page bill contains a number of other significant changes. It requires workplaces to conduct mandatory harassment training and keep records of complaints. It adds marital status and "caregiver status" to the list of traits that are protected from discrimination.

The bill’s complex provisions have drawn opposition not just from the private sector, but also from local governments, and branches of the state.

The Colorado Civil Rights Division, which enforces the state’s anti-discrimination laws, testified that they don’t support removing the "severe and pervasive" standard.

“This change could open the door to a large influx of cases filed and result in a greatly increased caseload for the division,” said Aubrey Elenis, the division’s director. 

She added another concern, which is that the bill would allow people who file complaints to see any previous complaints against their alleged harasser, with some information redacted.

“There may be a chilling effect on potential complainants wanting to file a charge of discrimination with CCRD knowing that their complaint and the respondent's position statement may be shared with others who file complaints after they do.”

Originally the Civil Rights Division was neutral on the measure, but the Division said amendments mean the bill has changed significantly and they’ve been working with the sponsors. 

Supporters say it will be extremely disappointing if the measure fails simply because the clock runs out. One witness who testified in support of the bill said the times have changed from the days when “someone grabbed your breasts once and you shouldn’t be that offended.”

The measure is still several steps away from final passage at the Capitol. 

“All we're asking for is, if you find out there's harassment in the workplace, address it, and then you won't be held liable. That doesn't seem like a big ask,” said Winter.