by Jennifer Gilroy
While you were watching the political sparring on topics as newsworthy and controversial as voter registration, school finance, and renewable energy, another matter with noteworthy implications slipped quietly through the legislative process: workplace harassment.
On the last day of the 2013 legislative session, the Majority Leaders of the House and Senate guided Senate Joint Resolution 13-36 through both houses, updating the General Assembly’s former sexual harassment policy by changing it to a workplace harassment policy. If you blinked that day, you might have missed this. Nevertheless, the resolution amending Joint Rule 38 catapulted the Colorado General Assembly into what the human resources world calls best practices in the area of antidiscrimination. Workplace harassment is a form of discrimination and the General Assembly, as stated in its new policy, seeks to create and maintain a work environment in which all members, legislative employees, and third parties are treated with dignity and respect free from harassment, whether subtle or overt.
Sexual Harassment vs. Workplace Harassment
You may be wondering, what exactly is the difference between sexual harassment and workplace harassment? Under the old sexual harassment policy set out in Joint Rule 38, a member of the General Assembly, legislative employee, or third party could file a complaint against another individual for unwelcome verbal or physical conduct of a sexual nature that met certain requirements. Under the newly adopted workplace harassment policy, the legally protected characteristics that can be the basis for such a complaint have been expanded to include verbal or physical behavior or conduct that denigrates or shows hostility or aversion toward an individual because of that individual’s:
- Sexual orientation
- Age, forty and older
- National origin
- Military status
- Genetic information
While the policy maintains sexual harassment as one of the bases for a workplace harassment complaint, the new policy also identifies that sexual harassment raises issues that are, to some extent, unique in comparison to other types of workplace harassment and therefore includes a special description of this type of harassment. The majority of the twelve legally protected characteristics identified in the new workplace harassment policy can also be found in the state’s laws addressing unfair and discriminatory employment practices. When the draft policy was reviewed by attorneys at Mountain States Employers Council, which specializes in employment law, the age qualifier (“forty and older”), military status, and genetic information were added. “Genetic information” comes from the Genetic Information Nondiscrimination Act of 2008 (“GINA”), which defines the term to mean information about an individual’s genetic tests or those of family members of the individual or the manifestation of a disease or disorder in family members of the individual.
The policy also changes the contact person to whom legislative interns and volunteer staff must report an incident of workplace harassment. Under the old policy, those individuals would have to go to the Speaker of the House of Representatives or the Senate President, or the individual designated by the Speaker or President. Those prospects could seem daunting, if not chilling, for an intern or volunteer. Under the new policy, those employees would report incidents to the Chief Clerk of the House of Representatives or to the Senate Secretary, or the Chief Clerk’s or Secretary’s designee of the opposite gender. The written statement implementing the new workplace harassment policy will also clarify that a victim may choose to go to either a female or male contact person, regardless of the victim’s gender. While this was always the case, the written statement will now expressly provide so.
The General Assembly’s new workplace harassment policy found in Joint Rule 38 may be accessed through the General Assembly’s webpage. The written statement implementing the workplace harassment policy, as prepared and approved by the staff directors of the Legislative Council, the Office of Legislative Legal Services, the Joint Budget Committee, the State Auditor, the Secretary of the Senate, and the Chief Clerk of the House of Representatives, must still be approved by the Executive Committee of the Legislative Council at its next meeting in July. Once approved, it too will be available on the General Assembly’s website and will be incorporated in each legislative agency’s personnel manual or equivalent document.
The rights of a legislative employee under the former sexual harassment policy or the new workplace harassment policy are distinct from any right a legislative employee may have to file a charge of discrimination with the United States Equal Employment Opportunity Commission or the Colorado Civil Rights Division, as provided by law.