Anti-Harassment Program (POWR Act) Overview and FAQ

This FAQ is intended to provide an overview of discriminatory and unfair employment practices, including optional language for development of an anti-harassment program. These topics were impacted by SB23-172, the Protecting Opportunities’ and Workers Rights Act (“POWR Act”). According to the Act’s legislative statement, two major goals of the Act are to encourage employers’ adoption of equal employment policies to prevent harassment, and to encourage free reporting and discussion of discriminatory practices. As employers, school districts must comply with this law and are subject to the POWR Act’s changes. 

Overview

The POWR Act’s major change is creating a new definition of “harass” or “harassment” that covers more behavior than existing law, making it easier for employees to assert that they have been the victim of discriminatory conduct. Previous caselaw found that harassment at work is not discriminatory or an unfair employment practice unless the conduct is “severe or pervasive.” The POWR Act rejects the “severe or pervasive” standard, in favor of a standard that prohibits unwelcome harassment. 

The bill also includes new responsibilities for employers, including school districts, and also encourages some optional policy or program development. 

Frequently Asked Questions

Q: What are discriminatory or unfair employment practices? 

A: Discriminatory or unfair employment practices are outlined in law; C.R.S. 24-34-402. Employers cannot discriminate against employees or potential employees in matters of compensation, terms, conditions, or privileges of employment because of their disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, religion, age, national origin, or ancestry. Additionally, employers are prohibited from discriminating against people who make reports of discriminatory or unfair employment practices. 

Discriminatory or unfair employment practices could include: 

• refusing to hire an applicant because of their sexual orientation
• firing an employee due to their religion
• promoting a male employee instead of an otherwise qualified female employee 
• demoting an employee due to their disability 

Q: How can schools ensure that the hiring and employment process is free from discriminatory or unfair employment practices? 

A: Schools should keep in mind that to be considered a discriminatory or unfair employment practice, the action must be intentional and based on employee or prospective employee’s membership in a protected group. Therefore, a school can decide not to hire a person who belongs to a protected class, as long as there is a legitimate, nondiscriminatory reason to do so. 

If a district is accused of discrimination, they must provide evidence of a legitimate, nondiscriminatory reason for the challenged employment action. The employee may, however, claim that the reasons set forth by the employer are “pretext” and that the real reason for the underlying action was unlawful discrimination. Williams v. Department of Public Safety, App. 2015, 369 P.3d 760.

Q: What are the employment rights afforded to individuals with disabilities?

A: The Americans with Disabilities Act (ADA) allows employers more flexibility to ensure that employees can perform the jobs they are hired to do. By way of example, it is not discriminatory for an employer to fail to hire an applicant if they have a disability that would make it impossible for them to perform the essential functions of the job. However, if an employee can be provided a reasonable accommodation that would allow the individual to satisfy the essential functions of the job, such accommodation must be provided. Ultimately, in hiring, employers do not need to waive or omit an essential function of a position - even if an applicant with a disability wishes to gain the position. Green v. U.S. Anesthesia Partners of Colorado, Inc., 2022, 624 F.Supp.3d 1201. The ADA also requires employers to consider reasonable accommodations before terminating a disabled employee.

Q: What is a reasonable accommodation?

A:  A reasonable accommodation under the ADA is a modification or adjustment to a job, the work environment, or the way things are usually done during the hiring process. These modifications enable an individual with a disability to have an equal opportunity not only to get a job, but successfully perform their job tasks to the same extent as a person without disabilities. 

The ADA requires reasonable accommodations as they relate to three aspects of employment: 1) ensuring equal opportunity in the application process; 2) enabling a qualified individual with a disability to perform the essential functions of a job; and 3) making it possible for an employee with a disability to enjoy equal benefits and privileges of employment. An employer is not required to provide a reasonable accommodation that imposes an undue burden; i.e., significant difficulty or expense to implement. 

Q: What does the addition of “marital status” as a protected class mean for districts?? 

A: The POWR Act’s addition of “marital status” as a protected class means that districts cannot discriminate against employees or potential employees based on whether they are married or single. Some potential examples of this type of discrimination include refusing to hire an applicant because they are not married, demoting or firing an employee after they get married, or failing to provide equal benefits to single and married employees. Because this protected class is recently added under Colorado law, there have not been any court cases interpreting this type of discrimination, so districts should be careful to avoid any appearance of discrimination against an employee or applicant based on their marital status

Q: The POWR Act provides an affirmative defense for claims of discrimination if districts can prove they have an Anti-Harassment Program. What is an affirmative defense? 

A: An affirmative defense is a way to negate liability. The classic example of an affirmative defense is self-defense – i.e., if Person A injured Person B, but Person B was intending to injure Person A, Person A is therefore not legally responsible for injuring Person B because it was done in self-defense. 

In the context of the POWR Act, the affirmative defense only applies to claims that a supervisor harassed an employee. In this situation, an employer can assert an affirmative defense to a harassment claim only if the employer has established a program designed to prevent harassment, deter future harassers, and protect employees from harassment and the employer can demonstrate that:

• The employer takes prompt, reasonable action to investigate alleged discrimination; and
• The employer takes prompt, reasonable remedial actions in response to complaints of discrimination. 

To be eligible for the affirmative defense, the district must also be able to prove that they communicated the existence and details of the program to both its supervisory and nonsupervisory employees, and that the employee in the specific discrimination complaint failed to take advantage of the anti-harassment program. 

Q: How can a district develop an Anti-Harassment Program? 

A: A district could follow the steps below, while making sure to request opinions and engagement from members of the school community, such as parents and staff members. Additionally, a district should consult legal counsel and take any special considerations in their district into account. 

1. Policy Review and Updates. First, review the district’s policies, and make updates to ensure compliance with state and federal laws. The following is a list of best practices, consistent with CASB Model Policies AC-R-1 and AC-R-2:
1. Policies should require the district to take prompt, reasonable action to investigate, address, or respond to complaints of alleged discriminatory or unfair employment practices. 
2. Policies should direct the superintendent should be directed to develop an anti-harassment program that requires training around prevention, reporting and responding to claims of harassment. Although the district policy may provide broad guidance, many of the details of the anti-harassment program will be up to the superintendent. 
3. Once policies are updated, they should be easy to access and broadly communicated. Prominently post information on your website detailing contact information for compliance officers, a detailed explanation of harassment and discrimination in easy-to-understand language, as well as an encouragement to report harassment and a simple reporting/complaint process.  
2. Personnel Records. Districts should also ensure that personnel records are maintained appropriately, and should review any procedures on this topic to make sure they are up-to-date. Personnel records include a wide range of documents, including requests for accommodation; complaints of discriminatory or unfair employment practices involving an employee; application forms submitted by applicants for employment; other records related to hiring, promotion, demotion, transfer, layoff, termination, compensation, etc.; and records of training provided to or facilitated for employees. 

1. These records must be kept for at least five years after (1) the date the employer received the record, (2) the date of the personnel action about which the record pertains, or (3) the date of the final disposition of a charge of discrimination or related action, as applicable. 
2. An accurate, designated repository of all written or oral complaints of discriminatory or unfair employment practices must be kept, which includes the date of the complaint, the identity of the complaining party, if the complaint was not made anonymously, the identity of the alleged perpetrator, and the substance of the complaint. Records relating to discriminatory or unfair employment practices are not public records - they are personnel records which are confidential under CORA.

Q: What should be included in the Anti-Harassment Program? 

A: There are no statutory requirements for the contents of an Anti-Harassment Program, but by reviewing state and federal law and other entities’ programs we can provide sample language. Please review CASB’s Sample Anti-Harassment Program Language below and adapt for your district’s particular circumstances. 

Other examples by other entities are available here: 

• U.S. Secret Service
• National Archives Anti-Harassment Program
• Department of Transportation

 CASB Sample Anti-Harassment Program

Preventing Harassment in District Schools

The District is committed to maintaining a safe school environment.  The purpose of the District’s Anti-Harassment Program is to address harassing conduct at the earliest possible stage by creating an accountable process for district staff to address allegations of harassment or discrimination and to take immediate and appropriate corrective action, including supportive measures and use of disciplinary actions to eliminate harassing conduct, even if such conduct does not rise to a level that would violate the law. This Program is a part of a larger district commitment to preventing harassment, that includes trainings for students and staff and streamlined and well communicated reporting processes.

Reporting Harassment in District Schools

Anyone who believes they have been subjected to or witnessed harassment or discrimination in any district school, at any district event, or on district property should report the harassment. Reports may be made to: 

• For students: any teacher or compliance officer
• For staff: the district’s compliance officer
• The District’s Compliance Officer
  • [Enter Phone Number, Address, and Email]
• District Title IX office
  • [Enter Phone Number, Address, and Email]
• [Provide a Link to Complaint form]
• [Provide descriptions and links of relevant policies]

What is Harassment? 

There are several different definitions of harassment under Colorado and federal law. The policy and definition to review depends on whether the victim is a student or a staff member, and also depends on the type of harassment. Student and Staff protections can be found respectively below. 

1. Harassment Against Students:
   

• Sex-based Harassment: 
  
  Sex-based Harassment is a form of sex discrimination that involves unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature which affect a student’s education. Sexual Harassment is prohibited under Title IX (District Policy AC-R-3*) and state law (District Policy JBB*, AC). Title IX is a federal law that prohibits sex-based discrimination in educational programs that receive federal financial assistance, including the District. Colorado state law has a different definition of sex-based harassment, which is slightly broader than Title IX. Therefore, conduct that may not be protected under Title IX may be considered to be harassment under state law. 

• Other Types of Harassment or Discrimination: 
  
  Colorado law prohibits harassment or discrimination based on protected classes, including disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, family composition, religion, age, national origin, or ancestry. If the conduct or communication is objectively offensive and unreasonably interferes with a student’s access to their education, it may be considered harassment or discrimination. However, students who experience harassment or discrimination that does not rise to the level of the state law definition may still be entitled to protections and accommodations.  
  
  Colorado law requires school districts to adopt policy and procedures to implement the above definition of harassment or discrimination and provide protections for students. The District’s policy on this topic is available here: [Link to policy]

2. Harassment Against Employees 
   

• Sex-based Harassment
  
  Sex-based Harassment is a form of sex discrimination that involves unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature which affect an employee’s work environment. Sexual Harassment is prohibited under Title IX (District Policy AC-R-2*) and state law (District Policy GBAA*). Title IX is a federal law that prohibits sex-based discrimination in educational programs that receive federal financial assistance, including the District. The definition of sexual harassment under Colorado law is slightly broader than Title IX, so conduct that is not covered under Title IX may be covered under Colorado law. 

• Workplace Harassment:
  
  Colorado law prohibits harassment against employees, meaning unwelcome physical or verbal conduct based on a person’s disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, religion, age, national origin, or ancestry. If the conduct or communication is subjectively offensive, objectively offensive and unreasonably interferes with the individual’s work performance, it may be considered workplace harassment. The District’s procedures for reporting and resolving workplace harassment can be found in: [Link to District’s policies]

What is Retaliation? 

Retaliation occurs when a person is subjected to adversity because they have engaged in activity to report, expose, or discuss harassment or discrimination. 

What if I have experienced other types of offensive or demeaning conduct?

If a student or staff member believes they have been subjected to offensive or demeaning conduct that is not covered under anti-harassment or discrimination laws, they should still report the conduct under the Anti-Harassment Program. 

Training

[Include links to trainings if applicable]

 May 2024