A bill introduced in the Colorado general assembly in January could have a major impact on how potential employees apply for jobs.
The Job Application Fairness Act, which would go into effect July 1, 2024, would prohibit employers from asking a prospective employee’s age, date of birth or dates of attendance from an educational institution on an employment application. According to the proposed bill, an employer could ask a future employee to verify compliance with age requirements required by a bona fide occupational qualification related to safety; a federal law or regulation; or a state or local regulation based on an occupational qualification.
The Colorado Department of Labor and Employment would be in charge of enforcing it and could issue warnings and civil penalties if the rules aren’t followed. A violation, however, wouldn’t create a private cause of action. An employee would file a complaint with the CDLE.
For the first violation, a warning and order requiring compliance within 15 business days would be issued. For a second violation, there could be a civil penalty of up to $1,000 and a third violation could lead to a penalty of $2,500.
On the federal level, there is some protection against age discrimination for employment. The Age Discrimination in Employment Act protects applicants and employees 40 and older from discrimination based on age. But according to the U.S. Equal Employment Opportunity Commission, the ADEA doesn’t specifically stop an employer from asking an applicant’s age.
Research from the EEOC for the state of Colorado indicates there were 269 individual charge filings for issues connected to employment age discrimination in 2021, which is down from 659 in 2009. According to a 2022 study from Common Sense Institute, a research group based in Colorado and Arizona, between 2010 and 2040, Colorado workers over the age of 54 will decrease from one-in-five workers to about one-in-four.
During a Feb. 2 Colorado Senate Business, Labor and Technology Committee meeting, Democratic Sen. Sonya Jaquez Lewis, one of the sponsors of the proposed bill, spoke about the issue.
“Colorado is facing [an] aging population crisis,” Jaquez Lewis said. “We’ve had a disconnect in the workplace and we all know we have a shortage of workers in many fields, but at the same time we have many Coloradans who want to get back to work, but there are barriers in their way.”
Jaquez Lewis pointed to age discrimination as a problem in the workplace.
“There are downstream effects,” Jaquez Lewis said. “The Colorado economy suffers when adults with essential skills are kept out of the workforce.”
The bill passed the committee on a 6-3 vote.
Rebecca Lindell, an associate at Ogletree Deakins who works in employment law, noted the law is similar to Colorado’s Ban the Box Law. That law prohibits employers with 11 employees or more from asking about an applicant’s criminal history on an initial employment application.
“There’s been a lot of pro-employee bills brought forward in Colorado recently,” Lindell said. “It doesn’t surprise me that we have this. There’s also a couple of other states that have already passed a similar law.”
According to the AARP, states that have passed similar measures include California, Minnesota, Pennsylvania and Wisconsin.
But is this a positive or negative for employers?
“I was talking with my colleagues and we haven’t seen clients asking for age on the initial application … recently,” Lindell said. She added a lot of employers have already removed it from their applications and Ogletree Deakins has been advising clients for a long time to remove them during the initial process to avoid a risk of age bias.
Lindell believes the bill has a good chance of getting passed by the general assembly because it only applies to the initial application.
“It’s not going into effect until 2024 … so there is time,” Lindell said. “I don’t expect to really get many inquiries until maybe later this year or until it passes at least.”
Editor’s note: Rebecca Lindell was a reporting intern at Law Week in 2017 and 2018.