Colo. Rev. Stat. § 24-34-305, Powers and duties of commission

(1) The commission has the following powers and duties:

(a) To adopt, publish, amend, and rescind rules, in accordance with the provisions of section 24-4-103, that are consistent with and for the implementation of parts 3 to 7 of this article. All rules adopted or amended are subject to sections 24-4-103 (8)(c) and (8)(d) and 24-34-104 (6)(b).

(b) Repealed.

(c) (I) To investigate and study the existence, character, causes, and extent of unfair or discriminatory practices as defined in parts 4 to 7 of this article and to formulate plans for the elimination of those practices by educational or other means.

(II) (A) In furtherance of its educational efforts to reduce instances of discriminatory or unfair employment practices, the commission shall create a volunteer working group representing both employer and employee interests, including human resource professionals, to assist in education and outreach efforts to foster understanding of and compliance with part 4 of this article. The commission may accept and expend gifts, grants, and donations to assist in its duties pursuant to this subparagraph (II).

(B) The commission shall create the volunteer working group by September 1, 2013. The working group shall develop and submit to the commission, by January 1, 2014, an education and outreach plan for the commission to implement for purposes of educating employers and providing outreach regarding part 4 of the article.

(C) In addition to the outreach plan required by sub-subparagraph (B) of this subparagraph (II), the working group shall compile and provide to the commission information on educational resources available to employers regarding the requirements of and compliance with part 4 of this article, including resources for employers on prevention of discriminatory employment practices. The commission shall post the information on its website and shall make the information available in an electronic format to all state departments and agencies that interact with private businesses in the state, including the departments of labor and employment, regulatory agencies, revenue, and state and the governor's office of economic development. Those departments and agencies, within existing resources, shall post the information provided by the commission, or links to that information, on their websites.

(d) (I) To hold hearings upon any complaint issued against a respondent pursuant to section 24-34-306; to subpoena witnesses and compel their attendance; to administer oaths and take the testimony of any person under oath; and to compel such respondent to produce for examination any books and papers relating to any matter involved in such complaint. Such hearings may be held by the commission itself, or by any commissioner, or by any administrative law judge appointed by the commission pursuant to part 10 of article 30 of this title, subject to appropriations for such administrative law judges made to the department of personnel; except that, if no administrative law judge is made available within the time limitations set forth in section 24-34-306 (11), the governor shall appoint an administrative law judge at the request of the commission, and such administrative law judge shall be paid out of moneys appropriated to the division. If a witness either fails or refuses to obey a subpoena issued by the commission, the commission may petition the district court having jurisdiction for issuance of a subpoena in the premises, and the court shall in a proper case issue its subpoena. Refusal to obey such subpoena shall be punishable as contempt.

(II) No person may be excused from attending and testifying or from producing records, correspondence, documents, or other evidence in obedience to a subpoena in any such matter on the ground that the evidence or the testimony required of him may tend to incriminate him or subject him to any penalty or forfeiture. However, no testimony or other information compelled under order from the commission, or other information directly or indirectly derived from such testimony or other information, may be used against the witness in any criminal case, except a prosecution and punishment for perjury or false statement committed in so testifying.

(e) To issue such publications and reports of investigations and research as in its judgment will tend to promote goodwill among the various racial, religious, age, and ethnic groups of the state and which will tend to minimize or eliminate discriminatory or unfair practices as specified by parts 3 to 7 of this article. Publications of the commission circulated in quantity outside the executive branch shall be issued in accordance with the provisions of section 24-1-136.

(f) To prepare and transmit annually, in the form and manner prescribed by the heads of the principal departments pursuant to the provisions of section 24-1-136, a report accounting to the governor for the efficient discharge of all responsibilities assigned by law or directive to the commission;

(g) To recommend policies to the governor and to submit recommendations to persons, agencies, organizations, and other entities in the private sector to effectuate such policies;

(h) To make recommendations to the general assembly for such further legislation concerning discrimination as it may deem necessary and desirable;

(i) To cooperate, within the limits of any appropriations made for its operation, with other agencies or organizations, both public and private, whose purposes are consistent with those of parts 3 to 7 of this article, in the planning and conducting of educational programs designed to eliminate racial, religious, cultural, age, and intergroup tensions;

(i.5) To intervene in racial, religious, cultural, age, and intergroup tensions or conflicts for the purpose of informal mediation using alternative dispute resolution techniques. Such intervention may be made in cooperation with other agencies or organizations, both public and private, whose purposes are consistent with those of parts 3 to 7 of this article.

(j) To adopt an official seal;

(k) (I) To receive reports from people alleging mistreatment in the context of maternity care, including care that is not organized for, and provided to, a person who is pregnant or in the postpartum period as defined in section 12-225-103, in a manner that is culturally congruent; that fails to maintain the person's dignity, privacy, and confidentiality; that fails to ensure freedom from harm and mistreatment; and that fails to enable informed choices and continuous support.

(II) Reports shall be collected in a way to ensure that:

(A) Confidential information can be de-identified;

(B) Individuals can identify mistreatment they experienced based on the following mistreatment index categories: Physical abuse, sexual abuse, verbal abuse, stigma and discrimination, failure to meet professional standards of care, or poor rapport between patients or clients and providers; poor conditions and constraints presented by the health-care system; and obstetric racism;

(D) An individual may identify any protected class the individual may be part of and that may have factored into the individual's mistreatment;

(E) An individual may indicate what might have been done differently to improve the individual's situation;

(F) An individual may enter narrative information in the individual's own words; and

(G) An individual may voluntarily share the individual's contact information and indicate whether the individual consents to being contacted by the department of regulatory agencies or the department of public health and environment.

(III) The commission shall generate de-identified composite information based on reports submitted pursuant to this subsection (1)(k). Notwithstanding section 24-1-136 (11)(a)(I), no later than July 1, 2025, and no later than July 1 every three years thereafter, the commission shall share the generated de-identified composite information with:

(A) The Colorado maternal mortality review committee created in section 25-52-104 (1);

(B) The house of representatives health and human services committee and the senate health and human services committee, or their successor committees; and

(IV) Reports may be shared internally with staff for study, investigation, reports, publications, or hearings.

(2) Any provision of this article to the contrary notwithstanding, no person shall be required to alter, modify, or purchase any building, structure, or equipment or incur any additional expense which would not otherwise be incurred in order to comply with parts 3, 4, 6, and 7 of this article.

(3) In exercising the powers and performing the duties and functions under parts 3 to 7 of this article, the commission, the division, and the director shall presume that the conduct of any respondent is not unfair or discriminatory until proven otherwise.

(4) Whether by rule, regulation, or other action or whether as a remedy for violation of any provision of parts 3 to 7 of this article or otherwise, the commission shall not prescribe or require the implementation of a quota system.

Source: L. 79: Entire part R&RE, p. 924, � 3, effective July 1. L. 80: (1) amended, p. 787, � 21, effective June 5. L. 81: (1)(a) amended, p. 1178, � 9, effective June 10. L. 83: (1)(e) and (1)(f) amended, p. 836, � 48, effective July 1. L. 86: (1)(e) and (1)(i) amended, p. 930, � 3, effective May 8. L. 87: (1)(d)(I) amended, p. 964, � 69, effective March 13. L. 89: Entire section amended, p. 1039, � 3, effective July 1. L. 92: (2) amended, p. 1121, � 2, effective July 1. L. 95: (1)(d)(I) amended, p. 654, � 70, effective July 1. L. 99: (1)(i.5) added, p. 152, � 1, effective August 4. L. 2000: (1)(f) amended, p. 1549, � 19, effective August 2. L. 2009: (1)(b) repealed, (SB 09-110), ch. 238, p. 1083, � 5, effective July 1. L. 2013: (1)(c) amended, (HB 13-1136), ch. 168, p. 554, � 4, effective August 7. L. 2016: (1)(a) amended, (HB 16-1192), ch. 83, p. 234, � 18, effective April 14. L. 2021: (1)(k) added, (SB 21-193), ch. 433, p. 2863, � 7, effective September 7. L. 2024: (1)(k) amended, (HB 24-1262), ch. 393, p. 2709, � 3, effective June 4.

Cross references: For the legislative declaration contained in the 1995 act amending subsection (1)(d)(I), see section 112 of chapter 167, Session Laws of Colorado 1995. For the legislative declaration in HB 24-1262, see section 1 of chapter 393, Session Laws of Colorado 2024.

24-34-306. Charge - complaint - hearing - procedure - exhaustion of administrative remedies. (1) (a) (I) Any person claiming to be aggrieved by a discriminatory or an unfair practice as defined by parts 4 to 7 of this article 34 may, by oneself or through the person's attorney, make, sign, and file with the division a verified written charge stating the name and address of the respondent alleged to have committed the discriminatory or unfair practice, setting forth the particulars of the alleged discriminatory or unfair practice, and containing any other information required by the division.

(II) The division shall include on any charge form or charge intake mechanism an option to select harassment as a basis or description of the type of discriminatory or unfair employment practice that is the subject of the charge.

(b) The commission, a commissioner, or the attorney general on its own motion may make, sign, and file a charge alleging a discriminatory or unfair practice in cases where the commission, a commissioner, or the attorney general determines that the alleged discriminatory or unfair practice imposes a significant societal or community impact. The charge shall be filed in the same manner and shall contain the same information as required for a charge filed by an individual pursuant to paragraph (a) of this subsection (1). When the commission, a commissioner, or the attorney general files a charge pursuant to this paragraph (b), the remedy available for the discriminatory or unfair practice shall be limited to equitable relief to eliminate the discriminatory or unfair practice.

(c) Prior to any other action by the division regarding the charge, the division shall notify the respondent of the charges filed against him or her.

(2) (a) After the filing of a charge alleging a discriminatory or unfair practice as defined by parts 4 to 7 of this article, the director, with the assistance of the division's staff, shall make a prompt investigation of the charge. The director may subpoena witnesses and compel the testimony of witnesses and the production of books, papers, and records if the testimony, books, papers, and records sought are limited to matters directly related to the charge. Any subpoena issued pursuant to this paragraph (a) shall be enforceable in the district court for the district in which the alleged discriminatory or unfair practice occurred and shall be issued only if the person or entity to be subpoenaed has refused or failed, after a proper request from the director, to provide voluntarily to the director the information sought by the subpoena.

(b) The director or the director's designee, who shall be an employee of the division, shall determine as promptly as possible whether probable cause exists for crediting the allegations of the charge, and shall follow one of the following courses of action:

(I) If the director or the director's designee determines that probable cause does not exist, he or she shall dismiss the charge and shall notify the person filing the charge and the respondent of the dismissal. In addition, in the notice, the director or the director's designee shall advise both parties:

(A) That the charging party has the right to file an appeal of the dismissal with the commission within ten days after the date the notification of dismissal is mailed;

(B) That, if the charging party wishes to file a civil action in a district court in this state based on the alleged discriminatory or unfair practice that was the subject of the charge filed with the commission, he or she must do so: Within ninety days after the date the notice specified in this subparagraph (I) is mailed if he or she does not file an appeal with the commission pursuant to sub-subparagraph (A) of this subparagraph (I); or within ninety days after the date the notice that the commission has dismissed the appeal specified in sub-subparagraph (A) of this subparagraph (I) is mailed;

(C) That, if the charging party does not file an action within the time limits specified in sub-subparagraph (B) of this subparagraph (I), the action will be barred, and no district court shall have jurisdiction to hear the action.

(II) If the director or the director's designee determines that probable cause exists, the director or the director's designee shall serve the respondent with written notice stating with specificity the legal authority and jurisdiction of the commission and the matters of fact and law asserted. In addition, the director or the director's designee shall order the charging party and the respondent to participate in compulsory mediation. Immediately after the director or the director's designee serves notice on the respondent, the director or the director's designee shall endeavor to eliminate the discriminatory or unfair practice by conference, conciliation, and persuasion and by means of the compulsory mediation required by this subparagraph (II).

(3) The members of the commission and its staff shall not disclose the filing of a charge, the information gathered during the investigation, or the efforts to eliminate such discriminatory or unfair practice by conference, conciliation, and persuasion unless such disclosure is made in connection with the conduct of the investigation, in connection with the filing of a petition seeking appropriate injunctive relief against the respondent under section 24-34-507, or at a public hearing or unless the complainant and the respondent agree to such disclosure. Nothing in this subsection (3) shall be construed to prevent the commission from disclosing its final action on a charge, including the reasons for dismissing such charge, the terms of a conciliation agreement, or the contents of an order issued after hearing.

(4) When the director is satisfied that further efforts to settle the matter by conference, conciliation, and persuasion will be futile, he shall so report to the commission. If the commission determines that the circumstances warrant, it shall issue and cause to be served, in the manner provided by section 24-4-105 (2), a written notice and complaint requiring the respondent to answer the charges at a formal hearing before the commission, a commissioner, or an administrative law judge. Such hearing shall be commenced within one hundred twenty days after the service of such written notice and complaint. Such notice and complaint shall state the time, place, and nature of the hearing, the legal authority and jurisdiction under which it is to be held, and the matters of fact and law asserted.

(5) In accordance with rules adopted by the commission, discovery procedures may be used by the commission and the parties under the same circumstances and in the same manner as is provided by the Colorado rules of civil procedure after the notice of hearing under subsection (4) of this section has been given.

(6) The respondent may file a written answer prior to the date of the hearing. When a respondent has failed to answer at a hearing, the commission, a commissioner, or the administrative law judge, as the case may be, may enter his default. For good cause shown, the entry of default may be set aside within ten days after the date of such entry. If the respondent is in default, testimony may be heard on behalf of the complainant. After hearing such testimony, the commission, a commissioner, or the administrative law judge, as the case may be, may enter such order as the evidence warrants.

(7) The commission or the complainant shall have the power to reasonably and fairly amend any complaint, and the respondent shall have like power to amend his answer.

(8) The hearing shall be conducted and decisions rendered in accordance with section 24-4-105; except that the decision shall also include a statement of the reasons why the findings of fact lead to the conclusions. The case in support of the complaint shall be presented at the hearing by one of the commission's attorneys or agents, but no one presenting the case in support of the complaint shall counsel or advise the commission, commissioner, or administrative law judge who hears the case. The director and the staff shall not participate in the hearing except as a witness, nor shall they participate in the deliberations of, or counsel or advise, the commission, commissioner, or administrative law judge in such case. At any such hearing, the person presenting the case in support of the complaint shall have the burden of showing that the respondent has engaged or is engaging in an unfair or discriminatory practice, and the respondent's conduct shall be presumed not to be unfair or discriminatory until proven otherwise.

(9) If, upon all the evidence at a hearing, there is a statement of findings and conclusions in accordance with section 24-4-105, together with a statement of reasons for such conclusions, showing that a respondent has engaged in or is engaging in any discriminatory or unfair practice as defined in parts 4 to 7 of this article, the commission shall issue and cause to be served upon the respondent an order requiring such respondent to cease and desist from such discriminatory or unfair practice and to take such action as it may order in accordance with the provisions of parts 4 to 7 of this article.

(10) If, upon all of the evidence at a hearing, there is a statement of findings and conclusions in accordance with section 24-4-105, together with a statement of reasons for such conclusions, showing that a respondent has not engaged in any such discriminatory or unfair practice, the commission shall issue and cause to be served an order dismissing the complaint on the person alleging such discriminatory or unfair practice.

(11) (a) The jurisdiction of the commission over the complaint ceases if:

(I) Written notice that a formal hearing will be held is not served within four hundred fifty days after the filing of the charge;

(II) The complainant has requested and received a notice of right to sue pursuant to subsection (15) of this section; or

(III) The hearing is not commenced within the one-hundred-twenty-day period prescribed by subsection (4) of this section.

(b) If the jurisdiction of the commission ceases pursuant to subsection (11)(a) of this section, the complainant may seek the relief authorized under this part 3 and parts 4 to 7 of this article 34 against the respondent by filing a civil action in the district court for the district in which the alleged discriminatory or unfair practice occurred. The complainant must file a civil action within ninety days after the date upon which the jurisdiction of the commission ceased. If the complainant fails to file the action within the time specified in this subsection (11)(b), the action is barred, and the district court does not have jurisdiction to hear the action.

(12) The division shall maintain a central file of decisions rendered under parts 3 to 7 of this article, and such file shall be open to the public for inspection during regular business hours.

(13) Any member of the commission and any person participating in good faith in the making of a complaint or a report or in any investigative or administrative proceeding authorized by parts 3 to 7 of this article shall be immune from liability in any civil action brought against him for acts occurring while acting in his capacity as a commission member or participant, respectively, if such individual was acting in good faith within the scope of his respective capacity, made a reasonable effort to obtain the facts of the matter as to which he acted, and acted in the reasonable belief that the action taken by him was warranted by the facts.

(14) No person may file a civil action in a district court in this state based on an alleged discriminatory or unfair practice prohibited by parts 4, 5, and 7 of this article 34 and excluding part 6 of this article 34 and section 24-34-505.6 without first exhausting the proceedings and remedies available to the person under this part 3 unless the person shows, in an action filed in the appropriate district court, by clear and convincing evidence, that the person's ill health which is of such a nature that pursuing administrative remedies would not provide timely and reasonable relief and would cause irreparable harm. This subsection (14) does not apply to civil actions filed in district court based on alleged discriminatory or unfair practices prohibited by either part 6 of this article 34 or section 24-34-505.6.

(15) The charging party in any action may request the division to issue a written notice of right to sue at any time prior to service of a notice and complaint pursuant to subsection (4) of this section. The charging party shall make the request for notice of right to sue in writing. The division shall promptly grant a claimant's request for notice of right to sue made after the expiration of one hundred eighty days following the filing of the charge. If a claimant makes a request for a notice of right to sue prior to the expiration of one hundred eighty days following the filing of the charge, the division shall grant the request upon a determination that the investigation of the charge will not be completed within one hundred eighty days following the filing of the charge. A notice of right to sue shall constitute final agency action and exhaustion of administrative remedies and proceedings pursuant to this part 3.

Source: L. 79: Entire part R&RE, p. 925, � 3, effective July 1. L. 87: (4), (6), (8), and (11) amended, p. 965, � 70, effective March 13. L. 89: (2), (6), and (11) amended and (13) and (14) added, pp. 1039, 1041, �� 4, 5, effective July 1. L. 91: (2)(a) amended and (2)(c) added, p. 1373, � 1, effective June 4. L. 93: (11) amended and (15) added, p. 554, � 1, effective April 29. L. 96: (2)(a) and (2)(c) amended, p. 343, � 3, effective April 16. L. 2002: (2)(c) amended, p. 129, � 1, effective March 26. L. 2009: (1), (2), and (15) amended, (SB 09-110), ch. 238, p. 1083, � 6, effective July 1. L. 2022: (11) amended, (HB 22-1367), ch. 473, p. 3456, � 2, effective August 10. L. 2023: (14) amended, (HB 23-1032), ch. 271, p. 1613, � 1, effective May 25; (1)(a) amended, (SB 23-172), ch. 389, p. 2323, � 2, effective August 7.

Editor's note: Section 7(2) of chapter 389 (SB 23-172), Session Laws of Colorado 2023, provides that the act changing this section applies to employment practices occurring on or after August 7, 2023.

Cross references: (1) For the legislative declaration in HB 22-1367, see section 1 of chapter 473, Session Laws of Colorado 2022.

(2) For the short title (Protecting Opportunities and Workers' Rights (POWR) Act) in SB 23-172, see section 1 of chapter 389, Session Laws of Colorado 2023.