In most states, harassment in the workplace has to meet a certain threshold of severity and frequency in order to be unlawful. But in Colorado, Democratic lawmakers want to change that. 

Senate Bill 172 seeks to update the state’s definition of harassment and specify that harassment does not need to be “severe or pervasive” to constitute a discriminatory or unfair practice. The bill passed the legislature on Saturday, now only needing approval from the governor to become law. 

If signed, the bill would also add marital status as a protected class, dis-incentivize the use of unlawful non-disclosure agreements, and prohibit employers from refusing to accommodate employees if they have a disability that “has a significant impact on the job.”

“We need a modern definition of harassment,” said bill sponsor Sen. Faith Winter, D-Westminster. “There’s been instances where, within our courts and within case law, rape was not pervasive enough to create an unsafe work environment because it was a one-time-only instance. There’s been instances where the use of the N-word wasn’t severe enough to create an unsafe work environment.” 

The federal “severe or pervasive” standard for unlawful harassment was established by the U.S. Supreme Court more than three decades ago. Some states have eliminated the “severe or pervasive” threshold, including New York, California and Maryland. 

This is the second time Colorado lawmakers have tried to pass this bill, nicknamed the “Protecting Opportunities and Workers’ Rights Act.” The last effort, Senate Bill 21-176, passed the Senate in 2021 but was killed by the House Judiciary Committee. 

“The core of the bill is to, frankly, catch our law up to modern times, modern mores, modern notions of what is and is not acceptable in a workplace,” said bill sponsor Rep. Mike Weissman, D-Aurora. 

The House passed SB 172 on Saturday in a 43-22 vote, following the Senate’s 23-12 approval on April 20. 

In the Senate, the vote was strictly along party lines, with all Democrats in support and all Republicans in opposition. In the House, three Democrats joined Republicans in voting “no” on the bill: Reps. Shannon Bird of Westminster, Bob Marshall of Highlands Ranch and Marc Snyder of Colorado Springs. 

Critics of the bill argued that removing the “severe or pervasive” requirement would make the standard for harassment too low, resulting in frivolous and expensive lawsuits. 

“A single comment could get an entire company pulled into court for years,” said Sen. Kevin Van Winkle, R-Highlands Ranch. “This is the kind of bill that will make (companies) scared to move to Colorado and hire employees that could essentially create frivolous claims that are never ending.” 

Under the bill, when determining unlawful harassment, courts would take into account the “totality of circumstances,” including whether the conduct was threatening, whether there was a power imbalance between the alleged victim and perpetrator, and whether the conduct included the use of slurs, humiliation or stereotypes about a protected class.

The bill specifies that petty slights, minor annoyances and lack of good manners do not constitute harassment. But, if it meets the prior standards, “a single incident may rise to the level of harassment.”

Other opponents of the bill said it would hurt work environments by making employees too “concerned about not offending.” 

“You can’t have honest communications as human beings if every single thing that you say has to be 100% HR-approved,” said Rep. Gabe Evans, R-Fort Lupton. “The mechanism by which harassment is rooted out of the workplace has to balance appropriately the ability for individuals … to work these things out together as adults before it triggers a formal legislatively-prescribed process.” 

Proponents of the bill countered that it would inspire more victims of harassment to seek legal action and eliminate the notion that employees should tolerate some level of harassment at work. 

Around 38% of women have experienced sexual harassment in the workplace, NPR reported. In 2021, a Gallup poll found that 1 in 4 Black and Hispanic workers in the U.S. had been discriminated against at work in the past year.

The bill would also address current law being inconsistently enforced by judges making different rulings about what constitutes “severe or pervasive,” proponents said. 

“That standard is so high that it makes it very difficult to claim harassment in some of the most egregious cases,” said bill sponsor Rep. Jennifer Bacon, D-Denver. “We have heard women claim that they have been grabbed, they have been asked what they dream about, they have been asked what they’re wearing under their clothes, they have been asked to stay the night in hotel rooms. And according to our courts, given that standard, all of those incidents were not considered harassment.”

In a written testimony in support of the bill, Marie Evenson said she reported a cook at her job after he repeatedly grabbed her around the waist. One week later, she was fired for not “fitting in” to the workplace environment. 

Evenson met with a lawyer to discuss her legal options, but was told she didn’t have a case. Evenson said her lawyer claimed her experience didn’t meet the state’s “severe or pervasive” standard. 

Because of this, when Evenson managed a catering office a few years later, she ignored the owner’s constant inappropriate comments. And when the owner one day ran his hand up Evenson’s inner thigh, she quit the job, but didn’t bother pursuing legal action. 

“I already knew Colorado’s laws were weak,” Evenson said. “People who had far more awful things happen than me – such as routine threats of rape, questions about their sexual experiences, constant barrages of sexually explicit comments – they hadn’t been able to bring cases.” 

In response to concerns from opponents, sponsors made several changes to the bill. Most notably, they removed a requirement that employers keep a record of all oral or written complaints brought to them in order to assert an affirmative defense to harassment claims – which critics said would create “endless mini trials” disputing over whether or not the employer’s records were accurate. 

The bill will next be sent back to the Senate to approve minor changes made by the House. Then it will go to Gov. Jared Polis for final consideration.