Major Colorado universities seek exemption from POWR Act

The Colorado Capitol

A coalition of most of Colorado’s public colleges and universities has asked sponsors of a bill to redefine harassment in state law either to exempt its members from the proposal or to make a bevy of changes to the bill that’s scheduled for its first committee hearing this week.

The letter from nine stand-alone higher-education institutions, the four-campus University of Colorado system and the Colorado Community College System adds to concerns that the business community has on the Protecting Opportunities and Workers’ Rights (POWR) Act. And it sets up a potentially tougher battle for sponsors who want to expand protections for female workers statewide after a similar bill died during the closing days of the 2021 session.

Senate Bill 172, sponsored by Democratic Sens. Faith Winter of Westminster and Julie Gonzales of Denver, seeks to nix the legal precedent that conduct must be “severe or pervasive” to rise to the level of harassment and put into law in its place that the conduct would be “offensive to a reasonable person in the same actual or perceived protected class.” The bill also would make it more difficult for an employer to offer an affirmative defense to such claims, would limit the use of nondisclosure agreements to settle harassment accusations and would add more protections for individuals with disabilities.

Business groups, which continue to negotiate with the bill’s sponsors and supporters, worry that the change of a definition used in most states would open businesses to a potential flood of lawsuits without doing anything to help employers improve their antidiscrimination policies. Supporters say that the outdated definition makes it too hard for workers suffering under belligerent conditions to get legal help and that existing NDAs sometimes prevent victims from being able to share details of their situations even with their family members or therapists.

Why colleges question POWR Act

The higher-education institutions, ranging from University of Northern Colorado to Metropolitan State University of Denver to Fort Lewis College, wrote in the March 28 letter to bill sponsors that while they support harassment-free workplaces, they already are operating under different standards of harassment from federal Title VII rules (“severe or pervasive”) and from Title IX rules (“severe and pervasive”). Adding a third standard of harassment that contrasts with federal case law would be both administratively burdensome and costly at a time that state colleges already get the second-lowest per-capita funding in the country, they said.

“In part because of its lack of ties to existing standards for harassment, the new standard is vague, which may increase challenges around implementation of the standard, and lead to confusion for both IHE (institutions of higher education) employees and their employers,” the letter reads. “There is no question that promulgating new policy, offering training and administering compliance with a third harassment standard would require potentially significant costs for IHEs.”

While business groups led the fight against the first version of the POWR Act in 2021 — joined by opposition from local-government groups and Colorado Civil Rights Division questions, the Denver Business Journal noted — colleges did not play a major role in that debate. A source for a university, who asked to remain nameless because the schools want to put forward a unified front rather than have one college be a focal point, said that the schools convened a meeting around the time of the new bill’s Feb. 27 introduction, however, and acted after discussing their issues with it.

More than just the definition

The letter identified several issues beyond the definition of harassment, including the same concerns with NDA limits and the “prescriptive set of factors” required to assert an affirmative defense that businesses have pinpointed. Plus, the schools said that the expansion of protected classes to include “perceived membership” will drive up costs, and they asserted that adding a new basis for discrimination by which an employer fails to conduct a reasonable investigation or take prompt remedial action is troubling.

That last addition is particularly problematic because the bill allows for workers to file harassment claims while limiting the schools’ ability to receive notice of the alleged harassment and take action to mitigate them, the letter states.

The first request of the schools is for sponsors to amend the bill to exempt public postsecondary institutions from the new definition of harassment, because existing federal regulations provide already for “robust employee protections against harassment,” the letter reads.

Alternatively, the letter asks for eight separate amendments, including tying the new definition of harassment to the existing “severe or pervasive” standard in Title VII, giving higher-education institutions 35 days to mitigate any alleged harassment and to eliminate or define “perceived membership” in protected classes.

SB 172 is scheduled for its first hearing on Wednesday before the Senate Judiciary Committee. It currently is scheduled sixth on a 1:30 p.m. agenda.