Right to Be Out at Work

Second Regular Session Seventy-fifth General Assembly STATE OF COLORADO INTRODUCED HOUSE BILL 26-1319 LLS NO. 26-0350.01 Richard Sweetman x4333 HOUSE SPONSORSHIP Camacho and Joseph, SENATE SPONSORSHIP Gonzales J., House Committees Senate Committees Business Affairs & Labor A BILL FOR AN ACT CONCERNING THE RIGHT OF AN EMPLOYEE TO BE OPEN ABOUT THEIR LGBTQ+ IDENTITY IN THE WORKPLACE WITHOUT ADVERSE ACTION FROM THEIR EMPLOYER, AND, IN CONNECTION THEREWITH, PROTECTING AN EMPLOYEE'S EXPRESSION OF THEIR SEXUAL ORIENTATION, GENDER IDENTITY, OR STATUS AS A TRANSGENDER, NONBINARY, OR TRANSITIONING INDIVIDUAL.

Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://leg.colorado.gov.) The bill prohibits an employer from: Shading denotes HOUSE amendment. Double underlining denotes SENATE amendment.

Capital letters or bold & italic numbers indicate new material to be added to existing law. Dashes through the words or numbers indicate deletions from existing law.

Subjecting an employee to an adverse employment action in response to the employee's disclosure of, or communication about, the employee's sexual orientation, gender identity, or gender expression or to the employee's status as a transgender, nonbinary, or transitioning individual; or ! Retaliating against an employee who supports, assists, or advocates for a coworker, student, or client in exercising their right to nondiscrimination, including by referring to an individual by their chosen names, pronouns, or personal titles. The bill allows an employee to determine the names, pronouns, and personal titles that are used to refer to the employee in the workplace, and the bill requires an employer, upon notification by an employee, to update all internal and public-facing records to reflect the employee's chosen name. If an employee chooses a name other than the employee's legal name, an employer must use the employee's legal name only where such use is required by law. The bill prohibits an employer from having a workplace dress code that imposes different requirements on the basis of an individual's sexual orientation, gender identity, or gender expression. An employer must allow each employee access to a restroom and changing facility that corresponds with the employee's gender identity. An employer operating a public building must ensure that the building includes at least one restroom that is compliant with the federal "Americans with Disabilities Act of 1990" and accessible to all individuals, regardless of the individual's sexual orientation, gender identity, or gender expression. An employer must provide private, nonbathroom spaces for nursing or pumping, which spaces are available to all parents regardless of their sexual orientation, gender identity, or gender expression. An employer must ensure equal access to certain employment benefits without regard to an employee's sexual orientation, gender identity, or gender expression. The bill requires every public employer to provide a voluntary, employee-initiated process for the development and implementation of a written transition plan for a transgender or transitioning employee. Upon request by an employee, a public employer shall promptly engage in good faith discussions with the employee, and, if applicable, the employee's designated union representative, to develop a transition plan. A transition plan may include consideration of: ! Internal and external communications regarding the employee's transition; ! Scheduling and approval of any absences related to the transition process; ! Procedures for updating and using the employee's chosen names, pronouns, and personal titles in employment contexts; and ! Training or educational opportunities for coworkers, students, or other stakeholders to promote understanding of the experiences in the workplace of transgender individuals and individuals who are transitioning. An employee of a private employer may request to collaborate with their employer to develop and implement a transition plan. The bill requires an employer to permit an employee to use the employee's available sick or personal leave time for the purpose of changing the employee's legal name or obtaining gender-affirming medical care, including recovery time. The bill requires a public employer to provide annual training to all employees regarding inclusive workplaces and support for LGBTQ+ employees. The department of labor and employment (department), in consultation with labor unions and LGBTQ+ advocacy organizations, must develop and make available training materials for this purpose. The department may receive and investigate complaints alleging violations, issue findings and orders to provide relief, and refer cases involving egregious or willful violations to the Colorado civil rights division or to the attorney general. The types of relief that the department may order include a fine in an amount not to exceed $5,000 for each violation. The department is required to adopt rules to implement and enforce the bill. The bill takes effect June 1, 2028. !

Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, add part 3 to article 13.5 of title 8 as follows:

PART 3 RIGHT TO BE OUT AT WORK 8-13.5-301. Short title.

THE SHORT TITLE OF THIS PART 3 IS THE "RIGHT TO BE OUT AT WORK ACT".

8-13.5-302. Legislative declaration.

(1) THE GENERAL ASSEMBLY FINDS THAT:

(a) COLORADO LAW, SPECIFICALLY SECTION 24-34-402, PROHIBITS DISCRIMINATORY INDIVIDUALS ON THE BASIS OF SEXUAL ORIENTATION, GENDER IDENTITY, OR GENDER EXPRESSION; AND OR UNFAIR EMPLOYMENT PRACTICES AGAINST

(b) EVERY EMPLOYEE IN COLORADO HAS A RIGHT TO BE OPEN ABOUT THEIR SEXUAL ORIENTATION, GENDER IDENTITY, AND GENDER EXPRESSION WITHOUT FEAR OF DISCRIMINATION OR RETALIATION.

(2) THE GENERAL ASSEMBLY ALSO FINDS THAT, DESPITE EXISTING LAWS PROTECTING LGBTQ+ EMPLOYEES, MANY SUCH EMPLOYEES:

(a) CONTINUE TO EXPERIENCE DISPROPORTIONATE WORKPLACE HARASSMENT, UNEQUAL BENEFITS, AND ADMINISTRATIVE BARRIERS TO SELF-IDENTIFICATION;

(b) REMAIN UNAWARE OF THEIR RIGHTS;

(c) FACE RETALIATION FOR EXERCISING THEIR RIGHTS; AND

(d) ARE DENIED ADEQUATE TOOLS TO REMEDY DISCRIMINATORY PRACTICES.

(3) THEREFORE, THE GENERAL ASSEMBLY DECLARES THAT:

(a) AFFIRMATIVELY ESTABLISHING A RIGHT TO BE OUT AT WORK IN COLORADO WILL CLARIFY EXISTING PROTECTIONS, CREATE ACCESSIBLE REMEDIES, AND PROMOTE EQUITABLE AND INCLUSIVE WORKPLACES IN THE PUBLIC AND PRIVATE SECTORS; AND

(b) WITH THIS PART 3, THE GENERAL ASSEMBLY INTENDS TO:

(I) CODIFY THE RIGHT OF EVERY EMPLOYEE IN COLORADO TO BE OPEN ABOUT THEIR SEXUAL ORIENTATION, GENDER IDENTITY, OR GENDER EXPRESSION WITHOUT FEAR OF DISCRIMINATION OR RETALIATION;

(II) REQUIRE EMPLOYERS TO RECOGNIZE EMPLOYEES' SELF-IDENTIFIED NAMES, PRONOUNS, AND PERSONAL TITLES;

(III) ENSURE ACCESS TO INCLUSIVE FACILITIES AND EMPLOYMENT BENEFITS; AND (IV) STRENGTHEN ENFORCEMENT AND ACCOUNTABILITY BY AUTHORIZING THE DEPARTMENT TO RECEIVE, INVESTIGATE, AND ADJUDICATE COMPLAINTS ARISING UNDER THIS PART 3.

8-13.5-303. Definitions.

AS USED IN THIS PART 3, UNLESS THE CONTEXT OTHERWISE REQUIRES:

"ADVERSE EMPLOYMENT ACTION" MEANS DISCHARGE, DEMOTION, CONTRACT NONRENEWAL, DISCIPLINE, DENIAL OF PROMOTION, HARASSMENT , EMPLOYMENT CONDITIONS OR BENEFITS.

DISCRIMINATORY TREATMENT RELATED TO

(2) "DEPARTMENT" MEANS THE DEPARTMENT OF LABOR AND EMPLOYMENT.

OR "EMPLOYEE" MEANS AN INDIVIDUAL EMPLOYED BY AN EMPLOYER IN THE STATE.

(4) "EMPLOYER" MEANS AN INDIVIDUAL, A PARTNERSHIP, AN ASSOCIATION, A CORPORATION, OR A PUBLIC ENTITY EMPLOYING ONE OR MORE INDIVIDUALS WITHIN THE STATE.

(5) "GENDER EXPRESSION" HAS THE MEANING SET FORTH IN SECTION 24-34-301 (9).

(6) "GENDER IDENTITY" HAS THE MEANING SET FORTH IN SECTION 24-34-301 (10).

(7) "LGBTQ+" MEANS LESBIAN, GAY, BISEXUAL, TRANSGENDER OR TRANSITIONING, OR QUEER OR A GENDER IDENTITY THAT IS DIFFERENT FROM CISGENDER AND HETEROSEXUAL NORMS.

(8) "PUBLIC EMPLOYER" HAS THE MEANING SET FORTH IN SECTION 29-33-103 (6). (9) "SEXUAL ORIENTATION" HAS THE MEANING SET FORTH IN SECTION 24-34-301 (24).

(10) "TRANSITION" OR "TRANSITIONING" MEANS AN INDIVIDUAL'S ADOPTION OF OUTWARD OR PHYSICAL CHARACTERISTICS THAT MATCH THEIR GENDER IDENTITY RATHER THAN THE CHARACTERISTICS THAT ARE ASSOCIATED WITH AN INDIVIDUAL'S SEX AS REGISTERED AT BIRTH.

(11) "TRANSITION PLAN" MEANS A WRITTEN TRANSITION PLAN DESCRIBED IN SECTION 8-13.5-309.

8-13.5-304. Right to be out at work - retaliation prohibited.

(1) AN EMPLOYER SHALL NOT SUBJECT AN EMPLOYEE TO AN ADVERSE EMPLOYMENT ACTION IN RESPONSE TO THE EMPLOYEE'S DISCLOSURE OF, OR COMMUNICATION ABOUT, THE EMPLOYEE'S SEXUAL ORIENTATION, GENDER IDENTITY, OR GENDER EXPRESSION OR TO THE EMPLOYEE'S STATUS AS A TRANSGENDER, NONBINARY, OR TRANSITIONING INDIVIDUAL.

(2) AN EMPLOYER SHALL NOT RETALIATE AGAINST AN EMPLOYEE FOR THE EMPLOYEE'S SUPPORT OF, ASSISTANCE TO, OR ADVOCACY FOR A COWORKER, STUDENT, OR CLIENT WHO EXERCISES THE INDIVIDUAL'S RIGHT TO NONDISCRIMINATION, INCLUDING BY REFERRING TO AN INDIVIDUAL BY THEIR CHOSEN NAMES, PRONOUNS, OR PERSONAL TITLES.

8-13.5-305. Right to self-identify.

(1) AN EMPLOYEE MAY DETERMINE THE NAMES, PRONOUNS, AND PERSONAL TITLES THAT ARE USED TO REFER TO THE EMPLOYEE IN THE WORKPLACE.

(2) UPON NOTIFICATION BY AN EMPLOYEE, AN EMPLOYER SHALL UPDATE ALL INTERNAL AND PUBLIC-FACING RECORDS, INCLUDING NAMEPLATES, DIRECTORIES, AND DIGITAL SYSTEMS, TO REFLECT THE EMPLOYEE'S CHOSEN NAMES, PRONOUNS, AND PERSONAL TITLES WITHOUT UNNECESSARY DELAY.

IF AN EMPLOYEE CHOOSES A NAME OTHER THAN THE EMPLOYEE'S LEGAL NAME FOR THE PURPOSES OF SUBSECTION (1) OF THIS SECTION, THE EMPLOYER SHALL USE THE EMPLOYEE'S LEGAL NAME ONLY WHERE SUCH USE IS REQUIRED BY LAW.

8-13.5-306. Gender-inclusive dress code.

AN EMPLOYER'S WORKPLACE DRESS CODE MAY NOT IMPOSE DIFFERENT REQUIREMENTS ON THE BASIS OF AN INDIVIDUAL'S SEXUAL ORIENTATION, GENDER IDENTITY, OR GENDER EXPRESSION.

8-13.5-307. Access to inclusive facilities.

(1) AN EMPLOYER SHALL ALLOW EACH EMPLOYEE ACCESS TO A RESTROOM AND CHANGING FACILITY THAT CORRESPONDS WITH THE EMPLOYEE'S GENDER IDENTITY.

(2) AN EMPLOYER THAT OPERATES A PUBLIC BUILDING SHALL ENSURE THAT THE BUILDING INCLUDES AT LEAST ONE RESTROOM THAT IS:

(a) COMPLIANT WITH THE FEDERAL "AMERICANS WITH DISABILITIES ACT OF 1990", 42 U.S.C. SEC. 12101 ET SEQ., AND ITS RELATED AMENDMENTS AND IMPLEMENTING REGULATIONS; AND (b) ACCESSIBLE TO ALL INDIVIDUALS, REGARDLESS OF THE INDIVIDUAL'S SEXUAL ORIENTATION, GENDER IDENTITY, OR GENDER EXPRESSION.

(3) AN EMPLOYER SHALL PROVIDE ADEQUATE PRIVATE SPACES FOR NURSING OR PUMPING, WHICH SPACES ARE NOT RESTROOMS AND ARE AVAILABLE TO ALL PARENTS REGARDLESS OF THEIR SEXUAL ORIENTATION, GENDER IDENTITY, OR GENDER EXPRESSION.

8-13.5-308. Inclusive employment benefits - model policy language - audits.

(1) AN EMPLOYER SHALL ENSURE EQUAL ACCESS TO EMPLOYMENT BENEFITS WITHOUT REGARD TO AN EMPLOYEE'S SEXUAL ORIENTATION, GENDER IDENTITY, OR GENDER EXPRESSION.

(2) THE DEPARTMENT SHALL ADOPT MODEL POLICY LANGUAGE AND CONDUCT REGULAR AUDITS TO ENSURE COMPLIANCE WITH THIS SECTION.

8-13.5-309. Transition plans for public employees - policies required - voluntary participation by employees.

(1) Transition plan policy required. EVERY PUBLIC EMPLOYER SHALL PROVIDE AN EMPLOYEE-INITIATED PROCESS FOR THE DEVELOPMENT AND TRANSGENDER OR TRANSITIONING EMPLOYEES.

(2) Voluntary participation.

(a) PARTICIPATION IN A TRANSITION PLAN BY AN EMPLOYEE IS IMPLEMENTATION OF A WRITTEN TRANSITION PLAN FOR VOLUNTARY.

(b) A TRANSITION PLAN MAY BE INITIATED ONLY AT THE REQUEST OF AN EMPLOYEE.

(c) AN EMPLOYER SHALL NOT IMPOSE ANY PENALTY OR TAKE ANY ADVERSE DISCONTINUING A TRANSITION PLAN AT ANY TIME, FOR ANY REASON.

EMPLOYMENT ACTION AGAINST AN EMPLOYEE FOR

(3) Good faith collaboration. UPON REQUEST BY AN EMPLOYEE, A PUBLIC EMPLOYER SHALL PROMPTLY ENGAGE IN GOOD FAITH DISCUSSIONS WITH THE EMPLOYEE, AND, IF APPLICABLE, THE EMPLOYEE'S DESIGNATED UNION REPRESENTATIVE, TO DEVELOP A TRANSITION PLAN.

A PUBLIC EMPLOYER SHALL ENSURE THAT SUCH DISCUSSIONS ARE COLLABORATIVE, CONFIDENTIAL, AND CONDUCTED IN A MANNER THAT AFFIRMS THE DIGNITY AND PRIVACY OF THE EMPLOYEE.

(4) Employee-centered scope.

(a) A TRANSITION PLAN MUST ADDRESS ONLY THOSE ASPECTS OF TRANSITIONING THAT THE EMPLOYEE CHOOSES TO RAISE.

(b) AN EMPLOYER SHALL NOT REQUIRE AN EMPLOYEE TO DISCUSS OR DISCLOSE ANY MATTER THAT THE EMPLOYEE DOES NOT WISH TO ADDRESS.

(c) AN EMPLOYER SHALL NOT REQUIRE AN EMPLOYEE TO CREATE OR MAINTAIN A TRANSITION PLAN AS A CONDITION OF EMPLOYMENT.

(5) Plan contents. AS MUTUALLY AGREED UPON BY AN EMPLOYEE AND AN EMPLOYER, A TRANSITION PLAN MAY INCLUDE CONSIDERATION OF:

(a) INTERNAL AND EXTERNAL COMMUNICATIONS REGARDING THE EMPLOYEE'S TRANSITION;

(b) SCHEDULING AND APPROVAL OF ANY ABSENCES RELATED TO THE EMPLOYEE'S TRANSITION;

(c) PROCEDURES FOR UPDATING AND USING THE EMPLOYEE'S CHOSEN NAME, PRONOUNS, AND PERSONAL TITLES IN ALL EMPLOYMENT CONTEXTS; AND

(d) TRAINING OR EDUCATIONAL OPPORTUNITIES FOR COWORKERS, STUDENTS, OR OTHER STAKEHOLDERS TO PROMOTE UNDERSTANDING OF THE EXPERIENCES IN THE WORKPLACE OF TRANSGENDER INDIVIDUALS AND INDIVIDUALS WHO ARE TRANSITIONING.

Confidentiality. ALL RECORDS AND COMMUNICATIONS RELATED TO A TRANSITION PLAN ARE CONFIDENTIAL, AND AN EMPLOYER SHALL MAINTAIN THE RECORDS AND COMMUNICATIONS SEPARATELY FROM STANDARD PERSONNEL FILES UNLESS DISCLOSURE IS REQUIRED BY LAW OR AUTHORIZED IN WRITING BY THE EMPLOYEE.

8-13.5-310. Transition plans - private employers.

AN EMPLOYEE OF A PRIVATE EMPLOYER MAY REQUEST TO COLLABORATE WITH THE EMPLOYER TO DEVELOP AND IMPLEMENT A TRANSITION PLAN, AS DESCRIBED IN SECTION 8-13.5-309.

8-13.5-311. Use of leave time.

AN EMPLOYER SHALL PERMIT AN EMPLOYEE TO USE THE EMPLOYEE'S AVAILABLE SICK OR PERSONAL LEAVE TIME FOR THE PURPOSE OF GENDER-AFFIRMING MEDICAL CARE, INCLUDING RECOVERY TIME.

CHANGING THE EMPLOYEE'S LEGAL NAME OR OBTAINING 8-13.5-312. Professional development and training.

(1) A PUBLIC EMPLOYER SHALL PROVIDE ANNUAL TRAINING TO ALL EMPLOYEES REGARDING INCLUSIVE WORKPLACES AND SUPPORT FOR LGBTQ+ EMPLOYEES.

(2) THE DEPARTMENT, IN CONSULTATION WITH LABOR UNIONS AND LGBTQ+ ADVOCACY ORGANIZATIONS, SHALL DEVELOP AND MAKE AVAILABLE TRAINING MATERIALS FOR THE PURPOSES OF THIS SECTION TO ENSURE CONSISTENCY AND ACCESSIBILITY STATEWIDE.

8-13.5-313. Enforcement and remedies.

(1) THE DEPARTMENT MAY:

(a) RECEIVE AND INVESTIGATE COMPLAINTS ALLEGING VIOLATIONS OF THIS PART 3;

(b) ISSUE FINDINGS AND ORDERS TO PROVIDE RELIEF; AND

(c) REFER CASES INVOLVING EGREGIOUS OR WILLFUL VIOLATIONS TO THE COLORADO CIVIL RIGHTS DIVISION OR TO THE ATTORNEY GENERAL.

(2) THE TYPES OF RELIEF THAT THE DEPARTMENT MAY ORDER PURSUANT TO SUBSECTION (1)(b) OF THIS SECTION INCLUDE:

(a) A CEASE-AND-DESIST ORDER;

(b) BACK PAY;

(c) FRONT PAY;

(d) HIRING OF AN EMPLOYEE, WITH BACK PAY;

(e) REINSTATEMENT OF AN EMPLOYEE, WITH BACK PAY;

(f) EXPUNGEMENT OF ANY DISCIPLINARY ACTIONS RELATED TO THE VIOLATION;

(g) UPGRADING OR PROMOTING OF AN EMPLOYEE; AND

(h) A FINE IN AN AMOUNT NOT TO EXCEED FIVE THOUSAND DOLLARS FOR EACH VIOLATION. THE DEPARTMENT SHALL TRANSFER MONEY COLLECTED AS FINES PURSUANT TO THIS SUBSECTION (2)(h) TO THE COMPLAINANT.

8-13.5-314. Applicability.

(1) THIS PART 3 SHALL NOT BE CONSTRUED TO ABROGATE OR DIMINISH:

(a) THE RIGHTS, PRIVILEGES, OR REMEDIES OF AN EMPLOYEE UNDER A COLLECTIVE BARGAINING AGREEMENT OR AN EMPLOYMENT CONTRACT; OR

(b) AN EMPLOYER'S OBLIGATION TO COMPLY WITH A COLLECTIVE BARGAINING AGREEMENT OR AN EMPLOYER POLICY, AS APPLICABLE, THAT PROVIDES GREATER PROTECTIONS, SAFEGUARDS, OR REMEDIES FOR LGBTQ+ EMPLOYEES THAN THE PROTECTIONS, SAFEGUARDS, OR REMEDIES DESCRIBED IN THIS PART 3.

8-13.5-315. Rules.

THE DEPARTMENT SHALL ADOPT RULES TO IMPLEMENT AND ENFORCE THIS PART 3, INCLUDING RULES ESTABLISHING PROCEDURES FOR FILING, INVESTIGATING, AND RESOLVING COMPLAINTS THAT THE DEPARTMENT RECEIVES CONCERNING THIS PART 3. IN ADOPTING RULES AS DESCRIBED IN THIS SECTION, THE DEPARTMENT SHALL CONSULT WITH LGBTQ+ SUPPORT GROUPS AND LABOR UNIONS.

SECTION 2. Act subject to petition - effective date. This act takes effect June 1, 2028; except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within the ninety-day period after final adjournment of the general assembly, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2026 and, in such case, will take effect June 1, 2028.