2023 Colorado Revised Statutes › Title 24 - GOVERNMENT - STATE (§§ 24-1-101 — 24-116-102) › PRINCIPAL DEPARTMENTS (§§ 24-30-101 — 24-36-306) › Article 34 - DEPARTMENT OF REGULATORY AGENCIES (§§ 24-34-101 — 24-34-1008) › Part 4 - EMPLOYMENT PRACTICES (§§ 24-34-400.2 — 24-34-408) › Section 24-34-402 - Discriminatory or unfair employment practices - affirmative defense - definition

(1)
It is a discriminatory or an unfair employment practice:
(a)
(I)
For an employer to refuse to hire, to discharge, to promote or demote, to harass during the course of employment, or to discriminate in matters of compensation, terms, conditions, or privileges of employment against any individual otherwise qualified because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, religion, age, national origin, or ancestry.
(II)
With regard to a disability, it is not a discriminatory or an unfair employment practice for an employer to refuse to hire, to discharge, or to promote or demote an individual with a disability if there is no reasonable accommodation that the employer can make with regard to the disability that would allow the individual to satisfy the essential functions of the job and the disability actually disqualifies the individual from the job.
(b)
(I)
For an employment agency to:
(A)
Refuse to list and properly classify for employment or refuse to refer an individual for employment in a known available job for which the individual is otherwise qualified because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, religion, age, national origin, or ancestry; or
(B)
Comply with a request from an employer for referral of applicants for employment if the request indicates either directly or indirectly that the employer discriminates in employment on account of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, religion, age, national origin, or ancestry.
(II)
With regard to a disability, it is not a discriminatory or an unfair employment practice for an employment agency to refuse to list and properly classify for employment or to refuse to refer an individual for employment in a known available job for which the individual is otherwise qualified if there is no reasonable accommodation that the employer can make with regard to the disability that would allow the individual to satisfy the essential functions of the job and the disability actually disqualifies the applicant from the job.
(c)
For a labor organization to exclude any individual otherwise qualified from full membership rights in the labor organization, to expel an individual from membership in the labor organization, or to otherwise discriminate against any of its members in the full enjoyment of work opportunity because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, religion, age, national origin, or ancestry;
(d)
For any employer, employment agency, or labor organization to print or circulate or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment or membership, or to make any inquiry in connection with prospective employment or membership that expresses, either directly or indirectly, any limitation, specification, or discrimination as to disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, religion, age, national origin, or ancestry or intent to make any such limitation, specification, or discrimination, unless based on a bona fide occupational qualification or required by and given to an agency of government for security reasons;
(e)
For any person, whether or not an employer, an employment agency, a labor organization, or the employees or members thereof:
(I)
To aid, abet, incite, compel, or coerce the doing of any act defined in this section to be a discriminatory or unfair employment practice;
(II)
To obstruct or prevent any person from complying with the provisions of this part 4 or any order issued with respect thereto;
(III)
To attempt, either directly or indirectly, to commit any act defined in this section to be a discriminatory or unfair employment practice;
(IV)
To discriminate against any person because such person has opposed any practice made a discriminatory or an unfair employment practice by this part 4, because he has filed a charge with the commission, or because he has testified, assisted, or participated in any manner in an investigation, proceeding, or hearing conducted pursuant to parts 3 and 4 of this article;
(f)
For any employer, labor organization, joint apprenticeship committee, sponsor of an apprenticeship program registered pursuant to article
15.7
of title
8
, or vocational school providing, coordinating, or controlling apprenticeship programs or providing, coordinating, or controlling on-the-job training programs or other instruction, training, or retraining programs:
(I)
(A)
To deny to or withhold from any qualified individual because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, religion, age, national origin, or ancestry the right to be admitted to or participate in an apprenticeship training program, an on-the-job training program, or any other occupational instruction, training, or retraining program.
(B)
With regard to a disability, it is not a discriminatory or an unfair employment practice to deny or withhold the right to be admitted to or participate in any such program if there is no reasonable accommodation that can be made with regard to the disability that would allow the individual to satisfy the essential functions of the program and the disability actually disqualifies the individual from the program.
(II)
To discriminate against any qualified individual in pursuit of such programs or to discriminate against the individual in the terms, conditions, or privileges of such programs because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, religion, age, national origin, or ancestry; or
(III)
To print or circulate or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for such programs, or to make any inquiry in connection with such programs that expresses, directly or indirectly, any limitation, specification, or discrimination as to disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, religion, age, national origin, or ancestry or any intent to make any such limitation, specification, or discrimination, unless based on a bona fide occupational qualification;
(g)
For any private employer to refuse to hire, or to discriminate against, any person, whether directly or indirectly, who is otherwise qualified for employment solely because the person did not apply for employment through a private employment agency; but an employer shall not be deemed to have violated the provisions of this section if such employer retains one or more employment agencies as exclusive suppliers of personnel and no employment fees are charged to an employee who is hired as a result of having to utilize the services of any such employment agency;
(h)
(I)
For any employer to discharge an employee or to refuse to hire or promote a person solely on the basis that such employee or person is married to or plans to marry another employee of the employer; but this subsection (1)(h)(I) does not apply to employers with twenty-five or fewer employees.
(II)
It is not unfair or discriminatory for an employer to discharge an employee or to refuse to hire or promote a person for the reasons stated in subsection (1)(h)(I) of this section under circumstances where:
(A)
One spouse directly or indirectly would exercise supervisory, appointment, or dismissal authority or disciplinary action over the other spouse;
(B)
One spouse would audit, verify, receive, or be entrusted with moneys received or handled by the other spouse; or
(C)
One spouse has access to the employer's confidential information, including payroll and personnel records.
(i)
Unless otherwise permitted by federal law, for an employer to discharge, discipline, discriminate against, coerce, intimidate, threaten, or interfere with any employee or other person because the employee inquired about, disclosed, compared, or otherwise discussed the employee's wages; to require as a condition of employment nondisclosure by an employee of his or her wages; or to require an employee to sign a waiver or other document that purports to deny an employee the right to disclose his or her wage information.
(1.3)
(a)
As used in subsections (1)(a) and (1.5) of this section and in this subsection (1.3), "harass" or "harassment" means to engage in, or the act of engaging in, any unwelcome physical or verbal conduct or any written, pictorial, or visual communication directed at an individual or group of individuals because of that individual's or group's membership in, or perceived membership in, a protected class, as described in subsection (1)(a) of this section, which conduct or communication is subjectively offensive to the individual alleging harassment and is objectively offensive to a reasonable individual who is a member of the same protected class. The conduct or communication need not be severe or pervasive to constitute a discriminatory or an unfair employment practice under subsection (1)(a) of this section and is a violation of subsection (1)(a) of this section if:
(I)
Submission to the conduct or communication is explicitly or implicitly made a term or condition of the individual's employment;
(II)
Submission to, objection to, or rejection of the conduct or communication is used as a basis for employment decisions affecting the individual; or
(III)
The conduct or communication has the purpose or effect of unreasonably interfering with the individual's work performance or creating an intimidating, hostile, or offensive working environment.
(b)
The nature of the work or the frequency with which harassment in the workplace occurred in the past is not relevant to whether the conduct or communication is a discriminatory or an unfair employment practice under subsection (1)(a) of this section.
(c)
(I)
Notwithstanding subsection (1)(a) of this section, petty slights, minor annoyances, and lack of good manners do not constitute harassment unless the slights, annoyances, or lack of manners, when taken individually or in combination and under the totality of the circumstances, meet the standards set forth in subsection (1.3)(a) of this section.
(II)
Factors to consider under the totality of the circumstances include:
(A)
The frequency of the conduct or communication, recognizing that a single incident may rise to the level of harassment;
(B)
The number of individuals engaged in the conduct or communication;
(C)
The type or nature of the conduct or communication, recognizing that conduct or communication that, at one time, was or is welcome between two or more individuals may become unwelcome to one or more of those individuals;
(D)
The duration of the conduct or communication;
(E)
The location where the conduct or communication occurred;
(F)
Whether the conduct or communication is threatening;
(G)
Whether any power differential exists between the individual alleged to have engaged in harassment and the individual alleging the harassment;
(H)
Any use of epithets, slurs, or other conduct or communication that is humiliating or degrading; and
(I)
Whether the conduct or communication reflects stereotypes about an individual or group of individuals in a protected class.
(1.5)
(a)
When an employee proves that a supervisor unlawfully harassed that employee, as described in subsection (1.3)(a)(III) of this section, the employer may assert an affirmative defense to the harassment claim only if the employer establishes that:
(I)
The employer has established a program that is reasonably designed to prevent harassment, deter future harassers, and protect employees from harassment. An employer's program satisfies this subsection (1.5)(a)(I) if the employer can demonstrate that:
(A)
The employer takes prompt, reasonable action to investigate or address alleged discriminatory or unfair employment practices, as described in subsection (1)(a) of this section; and
(B)
The employer takes prompt, reasonable remedial actions, when warranted, in response to complaints of discriminatory or unfair employment practices, as described in subsection (1)(a) of this section.
(II)
The employer has communicated the existence and details of the program specified in subsection (1.5)(a)(I) of this section to both its supervisory and nonsupervisory employees; and
(III)
The employee has unreasonably failed to take advantage of the employer's program specified in subsection (1.5)(a)(I) of this section.
(b)
Nothing in this subsection (1.5) supersedes or eliminates any other analyses, evaluations, or standards of liability for harassment established in this section and through judicial interpretation of Title VII of the federal "Civil Rights Act of 1964", as amended,
42 U.S.C. sec. 2000e
et seq.; the federal "Age Discrimination in Employment Act of 1967", as amended,
29 U.S.C. sec. 621
et seq.; Titles I and V of the federal "Americans with Disabilities Act of 1990", as amended,
42 U.S.C. sec. 12111
et seq.; the federal "Civil Rights Act of 1991", as amended,
42 U.S.C. sec. 1981a
; and the United States constitution and amendments to the constitution.
(2)
Notwithstanding any provisions of this section to the contrary, it is not a discriminatory or an unfair employment practice for the division of unemployment insurance in the department of labor and employment to ascertain and record the disability, sex, age, race, creed, color, or national origin of any individual for the purpose of making reports as may be required by law to agencies of the federal or state government only. The division may make and keep the records in the manner required by the federal or state law, but neither the division nor the department of labor and employment shall divulge the information to prospective employers as a basis for employment, except as provided in this subsection (2).
(3)
Nothing in this section shall prohibit any employer from making individualized agreements with respect to compensation or the terms, conditions, or privileges of employment for persons suffering a disability if such individualized agreement is part of a therapeutic or job-training program of no more than twenty hours per week and lasting no more than eighteen months.
(4)
Notwithstanding any other provision of this section to the contrary, it shall not be a discriminatory or an unfair employment practice with respect to age:
(a)
To take any action otherwise prohibited by this section if age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular employer or where the differentiation is based on reasonable factors other than age; or
(b)
To observe the terms of a bona fide seniority system or any bona fide employee benefit plan, such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this section; except that, unless authorized in paragraph (a) of this subsection (4), no such employee benefit plan shall require or permit the involuntary retirement of any individual because of the age of such individual; or
(c)
To compel the retirement of any employee who is sixty-five years of age or older and under seventy years of age and who, for the two-year period immediately before retirement, is employed in a bona fide executive or a high policy-making position if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee and if such plan equals, in the aggregate, at least forty-four thousand dollars; or
(d)
To discharge or otherwise discipline an individual for reasons other than age.
(5)
Nothing in this section shall preclude an employer from requiring compliance with a reasonable dress code as long as the dress code is applied consistently.
(6)
Notwithstanding any other provision of law, this section shall not apply to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.
(7)
For purposes of this section, "employer" shall not include any religious organization or association, except for any religious organization or association that is supported in whole or in part by money raised by taxation or public borrowing.
(8)
Notwithstanding any other provision of this section to the contrary, it is not a discriminatory or an unfair employment practice with respect to sex for a person to consider sex when hiring an employee engaged in child-care-related domestic services.
Amended by 2023 Ch. 389,§ 4, eff. 8/7/2023.
Amended by 2022 Ch. 473, § 4, eff. 8/10/2022.
Amended by 2021 Ch. 156, § 4, eff. 9/7/2021.
Amended by 2017 Ch. 290, § 1, eff. 8/9/2017.
L. 79: Entire part R&RE, p. 929, § 3, effective July 1. L. 86: (1)(a) to (1)(d), (1)(f)(I), (1)(f)(II), (1)(f)(III), and (2) amended and (4) added, p. 931, § 4, effective May 8. L. 89: (1)(h) added, p. 1163, § 1, effective April 17; (1)(e) amended, p. 1041, § 6, effective July 1. L. 93: (1)(a) to (1)(d), (1)(f), (2), and (3) amended, p. 1657, § 61, effective July 1. L. 99: (1)(a) amended, p. 354, § 1, effective July 1. L. 2007: (1)(a), (1)(b), (1)(c), (1)(d), and (1)(f) amended and (5), (6), and (7) added, p. 1254, § 2, effective August 3. L. 2008: (1)(i) added, p. 524, § 1, effective August 5. L. 2009: (1)(a) amended, (SB 09-110), ch. 1085, p. 1085, § 7, effective July 1. L. 2012: (2) amended, (HB 12 -1120), ch. 108, p. 108, § 23, effective June 1. L. 2017: (1)(i) amended, (HB 17-1269), ch. 1608, p. 1608, § 1, effective August 9.
The effective date for amendments to this section by House Bill 12-1120 (chapter 27, Session Laws of Colorado 2012) was changed from August 8, 2012, to June 1, 2012, by House Bill 12S-1002 (First Extraordinary Session, chapter 2, p. 2432, Session Laws of Colorado 2012.)
2023 Ch. 389, was passed without a safety clause. See Colo. Const. art. V, § 1(3).
2022 Ch. 473, was passed without a safety clause. See Colo. Const. art. V, § 1(3).
For the legislative declaration in HB 21-1108, see section 1 of chapter 156, Session Laws of Colorado 2021.