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Colorado Removes Severe and Pervasive From Its Definition of Harassment

In June 2023, Governor Jared Polis signed a new law that will "radically transform" Colorado's employment discrimination protections. (SHRM) The state's current definition of harassment is similar to Title VII, requiring the harassment to be severe or pervasive. However, the state believes that definition "does not take into account the realities of the workplace or the harm that workplace harassment causes."

Under the new law, harassment is defined as "the act of engaging in, any unwelcome physical or verbal conduct or any written, pictorial, or visual communication" directed at someone because of their membership in a protected class. In addition, the conduct must be "subjectively offensive to the individual" and "objectively offensive to a reasonable individual" class member. If submission to the unwelcome behavior is "an explicit or implicit term or condition of employment or basis for an employment decision or if the conduct unreasonably interferes with the person's work performance or creates an 'intimidating, hostile, or offensive working environment.'" The statute does explicitly state that "petty slights, minor annoyances, and lack of good manners do not constitute harassment" unless under the "totality of circumstances" meet the statute's standards. Colorado also increased protections for disabled workers. Employers may defend themselves in Colorado by showing reasonable efforts to prevent harassment and taking swift and remedial action when it occurs.

The Colorado business community decided not to oppose the changes officially. No Republican lawmakers supported the changes.