The Job Application Fairness Act and Penalties for Direct (or Indirect) Requests for Information Pertaining to the Age of Job Applicants

Kathryn Bennett, Law Clerk

Beginning July 1, 2024, Colorado’s new Job Application Fairness Act (“JAFA” or the “Act”) will go into effect, which will restrict the ability of Colorado employers to inquire into the age of job applicants, or else risk civil penalties. The Division of Labor Standards and Statistics (the “Division”) recently issued its Interpretive Notice and Formal Opinion (“INFO”) #9B[1] in an effort to assist employers with compliance as to what they can—and cannot—ask of job applicants relating to their age.

Background

In June 2023, Governor Polis signed the Job Application Fairness Act into law. The Act was the General Assembly’s response to increasing evidence of age discrimination in employer hiring practices. Unlike the federal Age Discrimination in Employment Act, which only includes employees aged forty and older as a protected class, JAFA applies to job applicants of all ages.

JAFA’s Requirements and the Division’s INFO #9B

As of July 1, 2024, the Act will prohibit virtually all Colorado employers from inquiring into the age of job applicants. Under the new law, employers may not ask or require an individual job applicant to disclose their age, date of birth, dates of attendance at or graduation from any educational institute, or any other similar information that would indirectly disclose the applicant’s age. This prohibition applies to the initial job application phase, but after that, employers may ask for additional documentation from applicants such as certifications and school transcripts that might contain age-related information. If an employer does so, however, it must notify the individual of their right to redact information disclosing their age, birthdate, and dates of attendance or graduation if the applicant so chooses.

JAFA does provide an exception for employers that must verify information relating to an employee’s age when that information pertains to a necessary job qualification or compliance requirement. For example, an employer may need specific information regarding an applicant’s age in order to comport with a bona fide occupational qualification relating to public or occupational safety, or with federal, state, or local statutes or regulations regarding bona fide occupational qualifications.

The Division’s INFO #9B provides a useful example: because a minor cannot work in a job which requires selling or serving alcohol, a bar or restaurant owner may ask in an application whether the applicant would be at least 18 years old when they started work, and then may ask the applicant to submit an unredacted driver’s license with a birthdate in order to ensure compliance with federal and state law after extending a job offer. However, the same bar or restaurant owner cannot ask the applicant to disclose his or her specific age or provide evidence of their age (like an unredacted driver’s license) in the initial job application.

Penalties for Non-Compliance

While a violation of JAFA will not give job applicants or employees a private cause of action to remedy the same, violations may nonetheless result in civil penalties from the Division. For an employer’s first violation of the Act, the Division will issue a warning and an order requiring compliance within fifteen business days. The Division will impose civil penalties for subsequent violations—up to $1,000.00 for a second violation, and up to $2,500.00 for each subsequent violation. Note that while a particular job posting may constitute a violation, each instance of an individual responding to a non-compliant job posting will not constitute separate violations for the purposes of penalties or other sanctions.

 Employer Considerations

Employers should revisit their job applications and job postings to ensure compliance with JAFA ahead of its effective date on July 1 in order to ensure that they are not requesting prohibited age-related information, either directly or indirectly, and should likewise ensure that their management and staff involved in hiring do not inadvertently request such information in their recruitment efforts. The Division anticipates publishing additional proposed rules regarding the Act’s requirements no later than March 31, 2024, which may provide further insight and guidance as to employers’ requirements under the Act. Campbell Litigation will continue to monitor the Division’s rulemaking efforts in furtherance of JAFA ahead of its effective date and is available to assist employers with these and other compliance-related issues in the workplace.

[1]https://cdle.colorado.gov/sites/cdle/files/INFO%20%239B%20Job%20Application%20Fairness%20Act%20%28JAFA%29%2012.8.23%20%5Baccessible%5D.pdf.