Simone Lawson
In Colorado, workplace harassment is a prevalent issue, despite federal and state laws prohibiting hostile work environments. Both Colorado state and US federal law protect employees from workplace harassment, which becomes unlawful when the conduct is based on a legally protected class or trait, such as race, sex, disability, religion, or age. While the specific elements of a hostile work environment claim depend on the facts of the case, it generally includes conduct that is unwelcome, offensive, and sufficiently severe or pervasive to create an abusive working environment. The recent removal of the 'severe or pervasive' requirement in Colorado has made it easier for individuals to file workplace harassment claims, but the complexity of what constitutes a hostile work environment remains, and consulting with an experienced employment law attorney is often necessary to determine the validity of a claim.
| Characteristics | Values |
|---|---|
| Conduct | Unwelcome, offensive, discriminatory, pervasive, severe, intimidating, hostile, or abusive |
| Protected traits or classes | Race, color, national origin, sex, sexual orientation, pregnancy, religion, disability, age, marital status |
| Actions | Teasing, offhand comments, isolated incidents, petty slights, annoyances |
| Legal requirements | Severe or pervasive requirement removed, reasonable efforts to prevent harassment, swift remedial action |
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What You'll Learn
Protected traits and classes
In Colorado, federal and state laws protect employees from discrimination and harassment in the workplace. A hostile work environment is defined as a workplace where discriminatory behaviour, harassment, or retaliation creates an intimidating, offensive, or oppressive atmosphere for employees.
To prove a hostile work environment claim, the conduct must be shown to be unwelcome, offensive, and based on a protected trait or class. Protected traits refer to aspects of an individual's identity that are safeguarded by law from discrimination and harassment. In Colorado, protected traits include race, colour, national origin, sex, sexual orientation, pregnancy, religion, disability, age, creed, gender identity and expression, veteran status, marital status, and political affiliation/philosophy.
For example, if an employee faces unwelcome comments or actions related to their race, this would constitute a hostile work environment as race is a protected trait. Similarly, if a person's religious beliefs are targeted through offensive remarks or exclusionary practices, their protected trait of religion is being violated, creating a hostile work environment.
It is important to note that not all offensive conduct rises to the level of impermissible harassment. Isolated incidents or occasional rudeness do not typically constitute a hostile work environment. Instead, the behaviour must be severe or pervasive enough to create an abusive working environment. This means that the conduct must interfere with an employee's work performance or create an intimidating, hostile, or offensive environment.
Colorado's Anti-Discrimination Act and the federal Age Discrimination in Employment Act specifically safeguard employees against age-related discrimination, which can manifest in various ways, such as being passed over for promotions or receiving negative evaluations due to one's age. Understanding these protected traits is crucial for employees to recognise their rights and take legal action if their rights are violated.
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Severity and pervasiveness
In June 2023, Colorado Governor Jared Polis signed a workplace harassment bill into law that removed the requirement to prove that behaviour has been 'severe and pervasive' to constitute a hostile work environment. This change makes it easier for people to file workplace harassment claims.
Previously, a hostile work environment claim would have included the following general elements: the conduct was unwelcome, offensive, based on a protected trait or directed against an individual because of their protected class, sufficiently severe or pervasive to alter a term of employment by creating an abusive working environment, and perceived by the complainant as abusive or hostile.
Conduct such as teasing, offhand comments, or isolated incidents that are not particularly serious will typically not result in an actionable claim. Petty slights, annoyances, and poor management practices also usually do not constitute illegal action. However, it is important to note that the standard of conduct that constitutes a hostile work environment can be subjective, and specific unlawful acts that contribute to a hostile work environment may include telling hostile jokes or discussing sexual activities in a hostile manner.
While businesses were concerned that the change in law could open the door to frivolous lawsuits, supporters of the bill pointed to substantial data from other states with similar laws that showed no increase in litigation or charges. The new law also includes protections for businesses, which will not be liable for harassment as long as they can show they made reasonable efforts to prevent it and took swift and remedial action when it occurred.
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Intimidation and offence
A hostile work environment is one in which the prohibited harassment unreasonably interferes with an employee's work or creates an intimidating, hostile, or offensive environment. This can include conduct based on protected traits or characteristics, such as race, colour, national origin, sex, sexual orientation, pregnancy, religion, disability, age, or marital status. It is important to note that not all offensive conduct rises to the level of impermissible harassment, and teasing, offhand comments, or isolated incidents that are not particularly serious may not result in an actionable claim.
To establish a hostile work environment claim, an employee must generally show that the conduct was unwelcome and offensive and that it was based on a protected trait or directed at an individual because of their protected class. The conduct must also be sufficiently severe or pervasive enough to alter the terms, conditions, or privileges of employment, creating an abusive working environment. However, in 2023, Governor Jared Polis signed a bill removing the requirement to prove that the behaviour was 'severe or pervasive'. This change makes it easier for individuals to file workplace harassment claims, although businesses will not be liable for harassment if they can show they made reasonable efforts to prevent it and took swift remedial action when it occurred.
If an employee feels they are experiencing a hostile work environment due to intimidation or offensive conduct, they should first ask the offending employee or employer to stop. If the issue persists, they can seek help from a manager or human resources. It is also recommended to consult with an experienced Colorado employment law attorney, who can provide guidance on legal options and, if necessary, file a complaint on the employee's behalf.
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Discrimination and harassment
In Colorado, employers are obliged to maintain a non-hostile work environment, giving each employee the opportunity to succeed and be fully productive. A hostile work environment is a by-product of specific unlawful acts, such as when an employer, unable to fire an employee, creates a hostile workplace environment in an attempt to make the employee quit. Other examples include harassment by union representatives, hostile jokes or discussions about protected bases such as sex or race, and employees discussing sexual activities in a hostile manner.
Conduct must be based on a protected trait, such as race or sex, or directed against an individual because of their protected class, such as their religion or disability. It is important to note that teasing, offhand comments, or isolated incidents that are not particularly serious will typically not result in an actionable claim.
In 2023, Governor Jared Polis signed a workplace harassment bill into law, which loosened the legal standard for harassment by removing the requirement to prove that the behaviour was 'severe and pervasive'. This change makes it easier for people to file workplace harassment claims. However, businesses will not be liable for harassment if they can show they made reasonable efforts to prevent it and took swift remedial action when it occurred.
If you are experiencing a hostile work environment due to discrimination or harassment, you should first ask the offending employee or employer to stop. If the harassment continues, you can seek help from a manager or human resources. It is recommended to consult with an experienced Colorado employment law attorney, who can help determine whether you have a claim and file a complaint on your behalf.
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Legal recourse
In the state of Colorado, employees at virtually every level of authority, in every position, are protected against unlawful harassment. This includes protection from hostile work environments, which are considered a form of employment discrimination.
To establish a hostile work environment claim, the following elements are generally required:
- The conduct was unwelcome and offensive.
- The conduct was based on a protected trait or class, such as race, colour, national origin, sex, sexual orientation, pregnancy, religion, disability, or age. Marital status is also included as a protected trait in Colorado.
- The conduct interfered with an employee's work or created an intimidating, hostile, or offensive work environment.
- The complainant perceived the environment as abusive or hostile.
It is important to note that the standard for what constitutes a hostile work environment can be subjective, and not all offensive conduct rises to the level of impermissible harassment. Petty slights, annoyances, teasing, offhand comments, or isolated incidents may not constitute illegal action.
If you believe you are experiencing a hostile work environment, there are several steps you can take:
- Document the incidents: Keep a record of any unwelcome or offensive conduct, including dates, times, locations, witnesses, and descriptions of the incidents.
- Request for the behaviour to stop: Inform the offending employee or employer that their behaviour is unwelcome and request that it ceases.
- Report the issue: If the behaviour continues, escalate the issue to a manager or human resources. Follow any relevant company policies or procedures for reporting harassment.
- Consult an attorney: Contact a Colorado employment law attorney to discuss your specific situation and determine if you have a valid claim. An attorney can guide you through the process and protect your rights.
- File a complaint: If you have a valid claim, your attorney can help you file a formal complaint with the appropriate state or federal agency, such as the Equal Employment Opportunity Commission (EEOC) or the Colorado Civil Rights Division.
- Mediation or arbitration: In some cases, disputes may be resolved through mediation or arbitration proceedings, which can provide a faster and less costly alternative to litigation.
- Legal action: If necessary, you may be able to bring a civil rights lawsuit against your employer or the responsible party. A lawsuit can result in various remedies, including damages, injunctions, and other relief.
It is always recommended to seek legal advice from a qualified attorney who can provide guidance tailored to your specific situation.
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Frequently asked questions
A hostile work environment is one in which an employee experiences harassment or discrimination that interferes with their work or creates an intimidating, hostile, or offensive environment.
In Colorado, a hostile work environment is constituted by specific unlawful acts, rather than poor work environments or bad management practices. This includes harassment or discrimination based on protected traits or classes, such as race, colour, national origin, sex, sexual orientation, pregnancy, religion, disability, age, or marital status.
If you believe you are in a hostile work environment, the first step is to ask the offending employee or employer to stop. If the issue persists, seek help from a manager or human resources. It is also important to consult with an experienced Colorado employment law attorney, who can advise on the specific elements of a claim and file a complaint on your behalf.
Examples of a hostile work environment may include an employer making the workplace hostile to encourage an employee to quit, employees telling hostile jokes concerning protected bases, or employees discussing sexual activities in a hostile and prevalent manner.
To file a hostile work environment claim in Colorado, it is recommended to consult with an experienced employment law attorney. They can help determine if there are grounds for a claim and guide you through the process of filing a complaint.
