Colorado Employers Take Note: Are You Complying with the Job Application Fairness Act?

Beginning July 1, 2024, Colorado will officially begin enforcing a restriction prohibiting employers from asking job applicants to disclose their age on an employment application. Colorado joins California, Connecticut, Delaware, Minnesota, and Pennsylvania which have similar laws targeted to reduce the risks of age discrimination in the employment application process.

The Colorado Job Application Fairness Act (JAFA or the “Act”), the law prohibiting age-related inquiries on job applications, was originally passed by Colorado’s legislature in June 2023 and took effect in August 2023, but it included in its text that employers would only be prohibited from asking such questions beginning on or after July 1, 2024. Now, with the enforcement date quickly approaching, employers in Colorado and other states should take some time to review their job application queries to ensure they comply with applicable laws.

We have written recently about states policing the use of artificial intelligence to review job applications and EEOC guidance addressing needed accommodations for persons with hearing deficits in the application process. The Act similarly focuses on the application process and prohibits employers from asking applicants to disclose their age in initial applications. This prohibition includes a restriction on asking questions about:

• An applicant’s date of birth;
• An applicant’s dates of attendance at an educational institution; or
• An applicant’s dates of graduation from an educational institution.

The Colorado Department of Labor and Employment, the agency tasked with enforcing this law, further notes that employers should not ask questions similarly likely to disclose an applicant’s age, such as when they first became eligible to vote or how long they have had a driver’s license.

The JAFA contains a few narrow exceptions permitting inquiries about an applicant’s age if pursuant to: (1) a bona fide occupational qualification related to public or occupational health and safety, (2) a federal statute or regulation, or (3) a local statute or regulation. But — even if an exception applies — the employer still cannot ask for the applicant’s specific age or date of birth and instead may only verify their compliance with the applicable qualification or regulation. In practice, suppose an employer is hiring a bartender where applicable law requires the bartender to be over the age of 18. The employer could ask the applicant if they are over the age of 18 (yes or no), but not the applicant’s specific age or date of birth.

Penalties for violating the JAFA begin with a warning but increase with each additional violation, including a $1,000 fine for a second offense, and $2,500 for a third or greater offenses. Moreover, each distinct job posting or application violating the Act constitutes a separate distinct violation, though there are mechanisms in the law to reduce or eliminate penalties if the offending application is brought into compliance.

If you haven’t reviewed your job applicant form in a while, the impending implementation of JAFA is a good reminder to take a look and ensure the application complies with state and federal law.