Colorado’s Job Application Fairness Act

By:  Kim Adamson

In June 2023, Colorado’s Governor Jared Polis signed Senate Bill 23-058, the Job Application Fairness Act (JAFA), which will be effective on July 1, 2024. JAFA applies to all public and private Colorado employers, regardless of size. The law prohibits employers from requesting or requiring information about a job applicant’s age or other age-related information “at the time of an initial employment application.” JAFA applies to the initial application process, so employers may request age-related information after processing the first application, such as background checks requiring an applicant’s date of birth.

Employers can confirm whether an applicant meets certain age restrictions for a position with age requirements under federal, state, or local laws or a bona fide occupational qualification (BFOQ) related to public or occupational safety. However, such verifications cannot request specific information about an applicant’s specific age, date of birth, or dates of school attendance and graduation from an educational institution. JAFA also allows employers to request applicants to provide copies of transcripts or other certifications during the initial application process, but the employer must advise applicants that they may redact information related to age, date of birth, or dates of attendance at or graduation from an educational institution.

JAFA adds to the restrictions already placed on Colorado employers related to the Federal Age Discrimination in Employment Act of 1967 (ADEA), which prohibits discrimination against individuals age 40 or older, and the Chance to Compete Act, also known as the “Ban the Box,” that was effective September 1, 2021, which prohibits employers from inquiring about an applicant’s criminal history on an employment application or during the interviewing and hiring process.  Note: Ban the Box applies only to Colorado employers with eleven or more employees.

The Colorado Department of Labor and Employment (CDLE) enforces JAFA. The law does not allow applicants to bring a lawsuit for violations, so complaints may only be submitted to the CDLE. If the CDLE determines an employer has violated the law, it may issue a warning and order requiring the employer to comply within 15 business days. If the employer fails to comply or commits a second violation, the CDLE may impose a penalty of up to $1,000. A third or further violations raise the fine up to $2,500. Each non-compliant job posting or application requesting applicants to disclose their date of birth or age-related information will be considered a separate violation and is not based on the number of applicants who respond to a job posting. The CDLE has issued an “Interpretive Notice & Formal Opinion #9B” regarding the law and expects proposed rules to be published by March 31, 2024.

To ensure compliance with JAFA by the effective date of July 1, 2024, employers should review job postings, job ads, employment applications, and hiring, interviewing, and background check processes to make sure they do not include any prohibited age-related inquiries during the initial application process. Employers should also consider training managers and all staff involved in the interviewing and hiring process about the law.

Sources: (060923)