3 CCR 708-1-85.1 - Harassment Based Upon Protected Classes in the Workplace Prohibited

It shall be a discriminatory or unfair employment practice for an employer, employment agency, labor organization, or its agents or employees, to harass, with or without loss of income or other tangible employment action, a person during the course of employment, based upon an individual's protected class status. Harassment occurs if the discriminatory treatment is unwelcome and has the effect of creating a work environment in which the conduct or communication is subjectively offensive to the employee alleging discrimination and objectively offensive to a reasonable individual who is a member of the same protective class.

(A) With respect to discriminatory harassment in the scope of employment, an employer is responsible for acts of harassment in the workplace where an employer knows or should have known of the conduct.

An employer may also be responsible for the acts of non-employees with respect to workplace harassment of its employees where the employer (or its agents or employees) knows or should have known of the conduct and fails to take immediate and appropriate remedial action.

(B) This Rule 85 also applies to harassment based on retaliation for engaging in a protected activity, pursuant to § 24-34-402(1)(e), C.R.S.

(C) In the event of alleged workplace harassment of an employee by a supervisor, an employer may raise an affirmative defense to liability to a victimized employee. Such defense is that:

(1) the employer has established a program that is reasonably designed to prevent harassment, deter future harassers, and protect employees from harassment;

(2) the employer has communicated the existence and details of the program to both its supervisory and nonsupervisory employees; and

(3) the employee has unreasonably failed to take advantage of the employer's program. As part of an employer's program, the employer must involve the employer taking prompt, reasonable action to investigate or address alleged discriminatory or unfair employment practices; and the employer must take prompt, reasonable remedial actions, when warranted, in response to complaints of discriminatory or unfair employment practices.

Statements of basis, specific statutory authority, and purpose, incorporated on the date of adoption

Adopted May 22, 2020; effective July 15, 2020

Statutory Authority

The amendments to these parts are adopted by the Colorado civil rights commission ("commission") pursuant to its authority at section 24-34-305(1)(a), C.R.S., to adopt rules for the implementation of parts 3 through 7 of article 34 of title 24.

Purpose

The purpose of these revisions is to update rule 80.6 to reflect recent changes to section 24-34-402.3, C.R.S., a/k/a the "pregnant workers fairness act"; to expand methods by which the civil rights division may serve copies of any charge upon the parties to the charge; to eliminate from the rules regarding appeals the option for a party to request oral argument to the commission on an appeal; to clarify the good-cause standard related to the commission's review of requests for extensions; and to amend the rule to include that harassment because of sexual orientation may include adverse treatment related to an individual's disclosure or discussion of that individual's gender expression, transgender status, or sexual orientation.

Factual and Policy Issues

The factual and policy issues encountered when developing these amendments include:

1. With the division's adoption of an on-line filing system, case connect, the commission revised rule 10.4(e)(1) to notify parties that the division will accept charges not only by mail, but also by e-mail and through case connect, the on-line electronic case filing system

2. The commission further changed rule 10.4(e) at paragraph (3) to identify that service of the charge on the parties by "mail" is not limited to the United States postal service. The commission made this change to harmonize the use of "mail" with the definition found at rule 10.2(u).

3. Because the commission has received fewer than five requests for oral argument in the past ten years, the commission found the option to request oral argument in rule 10.6(b)(2) to be unnecessary and removed it.

4. Because the division encounters administrative delays during its investigation process, including difficulty contacting witnesses, receiving information, and coordinating interviews with parties, the commission amended rule 10.7(b) to include that "administrative delays" include those delays the division encounters during its investigatory process.

5. The Colorado general assembly added section 24-34-402.3, C.R.S., to article 34 of title 24 in 2016. This statutory addition required amendments to rule 80.6 to expand the previous rule to include more specifically the variety of requirements and remedies articulated in the statutory addition.

6. The commission expanded what activities indicate sexual harassment because of sexual orientation to provide further protections to individuals who may disclose their gender expression, transgender status, or sexual orientation in rule 81.6(a).

7. The commission received and considered public comment regarding proposed additions and clarifications to rule 80.6, pregnancy, childbirth and related conditions. Because of those comments and consideration thereof, additional examples of reasonable accommodations were added to the non-exhaustive list of reasonable accommodations that may be provided to an employee covered by the rule. The commission elected not to adopt other suggestions related to rule 80.6 concluding that they were either beyond the scope of the rule, underlying statute, or already reflected in existing rule, statutes, and/or standards of review.

8. The commission received and considered public comment related to the amendment of rule 81.6 (5), regarding individuals who may disclose their gender expression, transgender status, or sexual orientation. Specifically, a recommendation that the phrase "one's own" be inserted into the rule immediately preceding the clause "gender expression, transgender status, or sexual orientation." After careful consideration of the comments the commission decided that use of the phrase "an individual's" instead of "one's own" would both serve the purpose of including the latter while also maintaining consistency with the rest of the rule which at various points refers to an "individual."

Adopted December 17, 2021; effective January 30, 2022

Statutory Authority

The amendments to these parts are adopted by the Colorado Civil Rights Commission (the "Commission") pursuant to its authority at section 24-34-305(1)(a), C.R.S., to adopt rules for the implementation of parts 3 through 7 of article 34 of title 24.

Purpose

The purpose of these revisions is to accommodate for Division staff who are available to assist with the filing of charges but who may be doing so remotely, and thus not at the Division's offices, and to remove provisions that are inaccurate in the context of the Division's application of Colorado's anti-discrimination act.

Factual and Policy Issues

As a result of the pandemic, staff of the Division began working remotely and thus offering their assistive services also remotely. The Division anticipates that some staff will continue to work in remote or hybrid- remote environments. The Commission, therefore, amends 10.4(E)(2) to accommodate that not all assistance must be provided at the Division's offices.

Additionally, in reviewing these rules, the Commission identified language that is not consistent with the Division's or Commission's application of these rules and enforcement of Colorado's anti-discrimination act.

Specifically, Division staff neither draft nor approve complaints of discrimination at the time of filing. Division staff assist complainants who seek assistance and confirm that the materials to be submitted are complete. As such, the Commission amends Rule 10.4(E)(2) to remove language that is contrary to the Division's staff's practices and authority.

Further, the Director does not dismiss any charges for any grounds not otherwise specified by Colorado's anti-discrimination act. The Commission, therefore, amends Rule 10.5(C)(1)(b) to remove language that is contrary to the Director's grounds for dismissal.

During review of the published rules, the Commission noted that Rule 10.5, Parts (C)(2) and (3) had been mis-numbered. The adopted rule re-numbers those back to their original form.

Adopted January 27, 2023; effective March 30, 2023

Statutory Authority

The amendments to these parts are adopted by the Colorado civil rights commission ("commission") pursuant to its authority at section 24-34-305(1)(a), C.R.S., to adopt rules for the implementation of parts 3 through 7 of article 34 of title 24.

Purpose

The purpose of these revisions is to update terms used in these rules to comport with definitions introduced or revised, including "gender expression," "gender identity," and "sexual orientation," in HB 21- 1108 and to harmonize the rules to the revised jurisdictional time limits set forth in HB 22-1367, including removal of a party's ability to request any extensions of time after 11:59 p.m., August 9, 2022.

Factual and Policy Issues

The factual and policy issues encountered when developing these amendments include:

In 2021, the Colorado General Assembly revised definitions used in section 2-4-401, C.R.S., including the definitions of "gender expression," "gender identity," and "sexual orientation." Laws 2021, Ch. 156 (H.B. 21-1108), § 9, eff. Sept. 7, 2021. Because these specific words and definitions have application in parts 3 to 7 of article 4, title 24, the commission needed to update its rules to adopt the new definitions, revise previous definitions, and make consistent applications to its rules where those terms had previously been used. See Rule 10.2 and 81.6.

In 2022, the Colorado General Assembly amended the commission's jurisdiction over a complaint, extending jurisdiction from 270 to 450 days. With that extension of jurisdictional authority, the Colorado General Assembly removed the statutory provisions that permitted parties to request extensions during the complaint and investigation process. Laws 2022, Ch. 473 (HB 22-1367), § 2, eff. Aug. 10, 2022. The commission, therefore, amended Rule 10.7(A) to provide a relevant effective date for Rule 10.7(A), consistent with the effective date HB 22-1367 to ensure those parties that are currently part of an investigation at the Civil Rights Division that was filed on or before August 9, 2022, do not lose the rights conferred upon them by a filing prior to the effective date of the statutory revisions. The commission removed Rule 10.12(E) because it applies to no complaints currently under review at the Civil Rights Division.

As clean-up and for clarity, the commission made additional edits to its definitions, including the definition of "commissioner," employee," and "employer." Similarly, the commission removed definitions that it found currently unnecessary, including "domestic service," "mental impairment," and "physical impairment."

Adopted January 27, 2023; effective March 30, 2023

Statutory Authority

The amendments to these parts are adopted by the Colorado civil rights commission ("commission") pursuant to its authority at section 24-34-305(1)(a), C.R.S., to adopt rules for the implementation of parts 3 through 7 of article 34 of title 24.

Adopted November 17, 2023; effective December 30, 2023

Purpose

The purpose of these revisions is to remove part 10.7, which has expired, and to harmonize the rules to statutory changes introduced in SB 23-172, including making modification to Rule 85.1, Work Place Harassment, and adding "marital status" as a protected class.

Factual and Policy Issues

The factual and policy issues encountered when developing these amendments include:

In 2023, the Colorado General Assembly revised section 24-34-402 to include specific definitions of "harass" and "harassment" that exclude that conduct in the workplace need not be "severe or pervasive" to constitute a discriminatory or unfair employment practice. Further, SB 23-172 added "marital status" as a protected class in part 4 of section 34 of title 24.

The commission, therefore, needed to update its rules to reflect the changes in the law, revise additional sections, and make consistent applications to its rules where necessary.

As clean-up and for clarity, the commission made additional edits to its rules, including removing Part 10.7, which had expired in August 2022, and re-numbering the remainder of Part 10's sub-parts.

Notes

3 CCR 708-1-85.1

37 CR 22, November 25, 2014, effective 12/15/2014 43 CR 12, June 25, 2020, effective 7/15/2020 45 CR 01, January 10, 2022, effective 1/30/2022 46 CR 04, February 25, 2023, effective 3/30/2023 46 CR 23, December 10, 2023, effective 12/30/2023