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DGS Legal Alert: Job Application Fairness Act Colorado Senate Bill 23-058

June 9, 2023

On June 5, 2023, Governor Jared Polis signed SB23-058 into law. The Job Application Fairness Act (the “Act”) prohibits Colorado employers from asking a job applicant’s age, date of birth, and date(s) of attendance or graduation from educational institutions. This prohibition applies only to initial employment applications and is in addition to the requirements set forth in the Federal Age Discrimination in Employment Act of 1967 (“ADEA”), which prohibits discrimination against individuals who are 40 or older.

There are three exceptions to the restrictions set forth in the Act; specifically, an employer may request verification of age:

  • when required by a bona fide occupational qualification (“BFOQ”)[1] relating to public or occupational safety;
  • as imposed by Federal law or regulation; and
  • as required by state and local law or regulation that is also based on a BFOQ.

The Colorado Department of Labor and Employment (“CDLE”) enforces the Act, which does not provide a private right of action for individual employees. Employers that violate the Act may receive a warning that requires employers to comply with the Act within 15 business days. If the employer fails to comply and commits a second violation, the CDLE may impose a penalty of up to $1,000. A third violation raises the penalty up to $2,500.

There are two key takeaways from the Job Application Fairness Act:

  • Employers may need to remove fields in their application form(s) and platform(s) that ask for an applicant’s age, date of birth, and dates of attendance or graduation from school.
  • Employers may need to train their interviewers to avoid age-related questions during applicant screenings and interviews.

The Job Application Fairness Act is codified as Colorado Revised Statutes § 8-2-131. The Act goes into effect on July 1, 2024.

[1] A BFOQ is defined as an employment qualification that relates to an essential job function and is necessary for the business’s operation.