?On June 2, Colorado Gov. Jared Polis signed into law the Job Application Fairness Act (JAFA), prohibiting employers from inquiring about a job applicant’s age during the hiring process. JAFA’s enactment adds to the requirements and proscriptions Colorado has implemented in the hiring process, including a “ban-the-box” restriction on inquiring about criminal histories and requiring the inclusion of salary and benefits information in job postings.
The specific information JAFA forbids employers from inquiring about includes an applicant’s (1) age, (2) date of birth, and (3) dates of attendance at or graduation from an educational institution. If employers request that applicants provide application materials, such as transcripts or graduation certificates, employers must notify applicants that they may redact information that identifies their age, date of birth, or dates of school attendance or graduation.
Notably, these restrictions apply only “at the time of an initial employment application,” mirroring the limitations on inquiring as to criminal histories under the Colorado Chance to Compete Act.
JAFA does permit employers to request that an applicant verify compliance with age requirements in an initial employment application, but only under limited circumstances where:
- Age is a bona fide occupational qualification pertaining to public or occupational safety.
- Such information is required under federal law or regulation.
- Such information is required under a state or local law or regulation based on a bona fide occupational qualification.
These verification requests must not, however, require disclosure of an individual’s specific age, date of birth, or dates of attendance at or date of graduation from an educational institution on the initial employment application.
JAFA does not create a private cause of action, so applicants cannot bring suit for a violation of the law. An employer may, however, be subject to penalties if the Colorado Department of Labor and Employment (CDLE) finds a violation of JAFA. The law permits aggrieved applicants to file a complaint alleging a violation of JAFA within 12 months of a violation, and the CDLE will then investigate whether the complaint has merit.
If the CDLE finds an employer has violated the law, the employer faces the following progressive penalties:
- First violation: Warning and order requiring compliance within 15 business days.
- Second violation: Order requiring compliance within 15 business days and a maximum civil penalty of $1,000.
- Subsequent violations: Order requiring compliance within 15 business days and a maximum civil penalty of $2,500.
Importantly, the CDLE will consider each distinct job posting that violates JAFA as a separate violation, potentially resulting in significant financial liability if the employer has systematically violated the law in multiple job postings.
JAFA becomes effective July 1, 2024, so employers have a little time to review their hiring practices to ensure compliance with its requirements. Once in effect, Colorado joins California, Connecticut, Minnesota, and Pennsylvania as states with legislation prohibiting age-related inquiries during the job application process.
David Gartenberg and Maria-Jose Malaver-Reyes are attorneys with Littler in Denver. Grecia Santos is a summer associate with Littler in Denver. © 2023. All rights reserved. Reprinted with permission.
