Polis signs workplace harassment bill, removing ‘severe or pervasive’ requirement

Hart Van Denburg/CPR News
Colorado state Sen. Faith Winter in a committee hearing on Tuesday, Jan. 25, 2022 at the state Capitol.

After years of negotiations and failed attempts, Colorado is making it easier for people to file workplace harassment claims.

Gov. Jared Polis signed into law Tuesday a bill that loosens the legal standard for harassment, so people will no longer have to prove that the behavior has been severe or pervasive.  

The measure’s passage was the culmination of countless discussions between advocates for the change and members of the business community, who feared it could open the door to frivolous lawsuits. But unlike attempts in previous years, major business interests eventually agreed to stay neutral on the policy and did not actively work to defeat it.

“We've demonstrated our commitment to try to find a compromise on this issue that would be a balance between employers and employees and not create a more litigious environment,” said Loren Furman, CEO of the Colorado Chamber of Commerce. 

Democratic Sen. Faith Winter, the main sponsor of Senate Bill 172, said it was tricky to craft a law that takes into consideration the large variety of workplace situations.

“Finding that right balance that is clear enough, that provides certainty for both employers and employees, but isn't so restrictive that there isn't room for nuance, is a difficult balance to strike,” she said.

Winter herself was the first lawmaker to come forward about sexual harassment at the state capitol back in 2017, eventually leading to the first expulsion of a state lawmaker in a century and changes to the legislature’s workplace standards and disclosure rules.  

In 2021, a similar measure failed at the very end of session, when Democrats on a House committee joined Republicans to strike it down. That defeat was a blow to the legislature’s Democratic women in particular; they had collectively ranked the bill as the number one policy they wanted to pass.

Last year negotiations stalled over the definition of harassment, and a bill was never even introduced.

“It has been a very difficult journey and I never take anything for granted,” Winter said.

The sticking point each time around was the definition of harassment: whether and how it should change. 

“That is the issue that has really taken probably the majority of the time in all the years of the negotiations,” said Furman. 

Previously, the law required someone bringing a complaint to show that the harassment they experienced met the definition of being severe or pervasive enough to create a hostile work environment.

Under Colorado’s new definition of harassment, the behavior doesn’t need to be severe or pervasive if it interferes with a person’s ability to do their job or creates a hostile work environment, or the person doing it makes it so that accepting harassment is a condition of employment or promotion. 

The law does clarify that “petty slights, minor annoyances, and lack of good manners do not constitute harassment” unless other factors make it more severe. The court will also consider how frequently the conduct occurred, how many people participated, the location, the duration, whether it was threatening, and if someone used a slur or degrading language and stereotypes against a protected group. 

Democratic Rep. Mike Weissman of Aurora chairs the House Judiciary Committee and was a sponsor. He said Colorado's law had been sort of frozen in time, lagging behind the demands of the modern workplace.

“What is a safe workplace free from improper conduct, on the part of women, on the part of people of color, on the part of a number of other folks who just should be able to go and do their job and, and do what their employer needs them to do in a safe way?” he said. 

According to the National Women’s Law Center, which tracks legislation across the country, New York and California were the first states to update their legal definitions of harassment to reject that it must be “severe or pervasive” to be unlawful. And since the #MeToo movement, a number of states have updated their laws to extend the statute of limitation for claims. But advocates say states aren’t doing enough to pass stricter laws on things like retaliation.

For their part, businesses would not be liable for harassment in their workplaces as long as they can show they made reasonable efforts to prevent it and take swift and remedial action when it occurs. 

That language helped ease the concerns of some in the business community.

“We have always demonstrated that we discourage any kind of workplace harassment,” said Furman, adding that she thinks the law will achieve intended goals without leading to meritless lawsuits. 

“We're able to accomplish a set of factors for the definition of harassment that both sides could agree to that have been litigated in the courts for quite some time.”

The bill also adds marital status to the list of traits protected from discrimination, and it increases protections for those living with a disability by making it harder for companies to say they can’t make accommodations for someone who is otherwise qualified for a job. 

“There's an understanding that we want these laws updated and we want this to be a worker-friendly state. And I think that has really crystallized particularly this year,” said employment and discrimination law attorney Iris Halpern, who was involved in negotiations.

Halpern said the fact that Democrats gained seats at the statehouse last year, strengthening their trifecta hold on state government, also helped propel the legislation forward and build momentum. 

“There's substantial data out there from the states that have done this previously, that shows that it does not result in an increase in litigation or charges.” 

But while the business community was largely on board with the changes — or at least not officially opposed — the bill was still highly partisan; no Republican lawmakers voted for it. 

Many said it wasn’t necessary and that the existing law was already adequate to address issues that arise.

Republican Sen. Kevin Van Winkle said a significant change to the legal standard could make it more difficult for everyone to function in a workplace, and lead to dangerous consequences.

“A single comment could get an entire company pulled into court for years, over a single comment that is not intimidating, not hostile, not offensive to a reasonable person, but is something more of an annoyance, something a little more petty.”