6 Things to Know About Colorado’s New Job Application Fairness Act

In an effort to prevent age discrimination in the workplace, Colorado passed legislation prohibiting employers from asking age-related questions of applicants on an initial employment application; California, Connecticut, Minnesota, and Pennsylvania have similar laws. Here are a few things employers should know:

1. The law goes into effect July 1, 2024.

The Job Application Fairness Act (JAFA) was signed into law by Colorado Governor Jared Polis in June of 2023. The law goes into effect beginning July 1, 2024, so employers have plenty of time to prepare. They should review all recruiting and hiring processes now so that necessary changes can be made to policies and practices.

Employers should conduct training or workshops for any employee involved in recruitment or hiring to ensure compliance and avoid violations.

2. Employers can no longer ask age-related questions.

What does the JAFA prohibit employers from asking? You can read the full text of the law here.¹ Beginning July 1, 2024, employers in Colorado may not ask applicants for their (1) age, (2) date of birth, or (3) dates of attendance at or graduation from school. If applicants will be submitting resumes, transcripts, or diplomas as a part of their application, employers must notify them that they are free to edit that information out.

3. What if there is an age requirement for the job?

The law allows for an exception where employers may ask an applicant to verify that their age falls within a certain requirement under limited circumstances such as:

• When age is a bona fide occupational qualification pertaining to public or occupational safety;
• When providing age is required under federal law or regulation; and
• When providing age is required under a state or local law or regulation based on a bona fide occupational qualification.²

A bona fide occupational qualification (BFOQ) is a specific and legitimate qualification or requirement for performing a job. For example, in the aviation industry, there are age restrictions for pilots that are established by the Federal Aviation Administration (FAA). These restrictions are based on safety considerations. In the U.S., pilots must retire from regular, scheduled commercial airline service at age 65. A recruiter could ask an applicant to verify that they are not 65 or older.

In another example, a law firm could ask an applicant how long they have been licensed to practice law. While this might hint at the person’s age, it is necessary information about the applicant’s qualifications.

Even when this exception applies, employers still cannot initially ask for specific age, date of birth, or dates of school attendance/graduation, just that they fit into the requirements or restrictions of the job.

4. The law may be good for workers

The rationale for this sort of legislation is to ensure that employment decisions are made without bias. Employers are encouraged to focus on an applicant’s relevant qualifications, work experience, and ability to perform the essential functions of the job.

The law helps workers or applicants avoid being discriminated against because of their age. It may help create a fair and equal playing field for all applicants, preventing discrimination in the hiring process.

Even with federal laws in place to prevent age discrimination like the Age Discrimination in Employment Act of 1967 (ADEA), age discrimination continues to happen. The collective age of the workforce has changed as, for various reasons, people are working longer than the generations before them. This new law may decrease the instances where older people are looked down upon, passed over, or dismissed because of their age. Avoiding discrimination is good for employers too.

5. Avoiding practical problems

Employers typically need to know if a candidate is entry-level or has significant job experience. Nothing in the law prevents employers from asking about a candidate’s job experience or checking references.

Employers will often want to check for resumé fraud, particularly in high-level positions. JAFA applies to initial employment applications. So the employer could initially follow up on references, previous employment, and other screening. Then the employer can make a tentative offer, pending background checks. While background checks are often limited to criminal convictions, they can include checking on details of degrees, licenses, and training certificates. At this point, the prospective employee may need to provide the dates these were acquired. The employer could further insulate this request by having the employee provide this information only to the person or entity doing the background check.

6. Violating the law could be costly

If an applicant wants to file a complaint alleging a violation of JAFA, they must submit it to the Colorado Department of Labor and Employment (CDLE) within 12 months of the occurrence. The CDLE takes it from there to see if a violation occurred or not.

If the CDLE finds that the employer did, in fact, violate JAFA, there are penalties to face.

• For the first violation, the employer will receive a warning and an order requiring compliance within 15 days.
• For the second violation, the employer faces an order requiring compliance within 15 days as well as a civil penalty up to $1,000.
• For the third and any subsequent violations, the employer faces an order requiring compliance within 15 days as well as a civil penalty up to $2,500.³

Each job posting is considered separately when calculating violations. If a company is hiring for three different positions and posts three job postings with a line for date of birth on the application, that could be three violations. Employers should review current templates for job descriptions and all application forms for compliance.

Conclusion

Employers still have some time before the law goes into effect, but in the meantime should review all hiring policies, job descriptions, and posts as well as conduct training for employees who work in recruiting or hiring.

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¹ Job Application Fairness Act: SB23-058, Colorado General Assembly, https://leg.colorado.gov/bills/sb23-058

² Id.

³ Job Application Fairness Act

Featured Image by Rebecca Sidebotham.