Over the last two years, Colorado enacted some significant employment laws, including the Healthy Families & Workplaces Act and Equal Pay for Equal Work Act. Colorado’s 2021 legislative session ended on June 12, 2021. This Lightbulb highlights two more recently enacted employment laws. The Littler Denver office continually monitors these issues and other state and local developments as they unfold.

• Colorado Updates Prohibitions Against Gender-Based Discrimination. On May 20, 2021, the governor signed HB 21-1108, which broadens the categories of protected classes under Colorado’s anti-discrimination act. Colorado law already prohibited discrimination in employment based on disability, race, creed, color, sexual orientation, religion, age, national origin, or ancestry. The new law clarifies that employers also may not discriminate against an individual based upon their “gender expression” or their “gender identity.” Gender expression means an individual’s way of reflecting and expressing their gender to the outside world, typically demonstrated through appearance, dress, and behavior. Gender identity means an individual’s innate sense of their own gender, which may or may not correspond with the sex assigned at birth.

The law further clarifies the definition of sexual orientation. The statute defines “sexual orientation” as an individual’s orientation toward heterosexuality, homosexuality, bisexuality, or transgender status. Under the amendment, “sexual orientation” means an individual’s identity, or another individual’s perception thereof, in relation to the gender or genders to which one is sexually or emotionally attracted, and the behavior or social affiliation that may result from the attraction. These amendments become effective September 11, 2021.

Employers should review and consider revising their anti-discrimination policies and procedures, as well as any workplace grooming policies or dress codes. Additional training of HR, supervisors, and managers may also be warranted to ensure proper training on company policies, including grooming and EEO policies. Colorado employers should also consider implementing diversity and inclusion training for mangers responsible for enforcing or otherwise interpreting company grooming standards or policies. Effective training can help ensure that employers create and appropriately interpret neutral grooming standards that promote both company business interests and a compliant and inclusive workplace environment.  

• Veterans’ Hiring Preference. Colorado also recently enacted HB 21-1065, which allows—but does not require—private employers to give preference in hiring to certain eligible individuals. Generally, subject to certain time constraints, eligible individuals include: (1) a veteran of the armed forces; (2) a member of the military reserves; (3) a veteran of the National Guard; or (4) a spouse of a disabled veteran or a service member killed in the line of duty. The law clarifies that a private employer that adopts a program that gives preferences to veterans or their spouses will receive a rebuttable presumption that the employer is not committing a discriminatory or unfair labor practice. Effective September 21, 2021, private employers may give preference to the aforementioned individuals when hiring a new employee, provided that the eligible individual is “as qualified as other applicants for employment.” Any veterans’ preference hiring policies must be in writing and implemented at least 14 days before it is applied to a posting or hiring decision, must be applied uniformly to all hiring decisions, and must require certain proof that the individual is eligible. Finally, the law is clear that employers may advertise for and actively recruit veterans regardless of whether they adopt a veterans’ hiring preference policy.

Colorado employers should take this opportunity to review any policies and procedures affected by HB 1108 or HB 1065 and contact employment counsel with any questions.