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Colorado may end age-discriminating work questions

Senate Bill 58 would put an end to asking applicants’ age
The Colorado Capitol on Dec. 10, 2021. (Olivia Sun/The Colorado Sun via Report for America)

Asking someone their age is considered impolite. But asking a job candidate? That’s perfectly legal.

A bill at the state legislature would change that, at least in Colorado, and prohibit companies from fishing around for an age by asking about high school or college graduation dates. Older job candidates never know if that little number got in the way of a callback so this proposal would eliminate that doubt.

“In order to combat that kind of age discrimination in the hiring process, we mean to eliminate any age-identifying items in the job application process,” said state Sen. Jessie Danielson, a Democrat from Wheat Ridge who is the prime sponsor of the bill. “That way, older Coloradans are being judged on their merit equal to their younger counterparts when they’re trying to get a new job.”

Senate Bill 58, also known as the Job Application Fairness Act, is straightforward: remove any part of a job application asking about age. There are exceptions, including occupations with age limits – commercial pilots, for example, must be under 65, per federal law. The bill joins others introduced in recent years attempting to address workplace equity for Coloradans of all genders, backgrounds and abilities. It also comes at a time when the state really needs more workers and adults nearing retirement age or beyond it are seen as an underutilized workforce.

In a job survey conducted by AARP last year, 53% of respondents who were recent job seekers said they were asked by an employer to provide their birth date during the application or interview process, while 47% were asked for a graduation date.

“Of course you can guesstimate how old someone is if they graduated in 1987 from high school,” said Bill Rivera, senior vice president of AARP Foundation Litigation. “It’s unfortunate that age discrimination still seems so alive and well. And frankly, I think people don’t get that upset about it.”

He pointed to electronic hiring systems that ask for dates – and don’t let the applicant move forward if the question is not answered.

“And think about the people who are dissuaded from applying in the first place,” he said.

Sometimes, the companies don’t even ask. Amazon, T-Mobile and other tech companies were accused in 2017 of using Facebook’s targeting tools to target 18 to 38-year-olds for job openings and thereby excluded older Americans, according to the lawsuit by Communications Workers of America. The companies ended up settling and Facebook paid $5 million and agreed to block discriminatory ads.

“Ageism often is still one of the last acceptable bastions of isms,” Rivera said. “And so in the workplace, you will get a greater tolerance for jokes about aging, when you are going to retire or people having ‘senior’ moments or other things that you wouldn’t tolerate … if you were making racial, ethnic or misogynist jokes.”

Age discrimination enforcement is reactive

There is no telling how much age discrimination at work goes on in America. A lot is anecdotal. But there is a federal law protecting workers 40 and older. It’s the Age Discrimination in Employment Act of 1967. ADEA doesn’t prohibit asking job seekers their age.

But there is some data.

The Equal Employment Opportunity Commission, which enforces ADEA, tracks complaints and the numbers have been in decline for years. The lowest number of new cases filed since 1996 was recorded last year, at 12,965, according to EEOC data. In Colorado, age discrimination made up 26.7% of all of its discrimination cases reported to the agency.

Some of the cases made public were eye-popping. An HR director at Swiss manufacturer Fischer Connectors in Atlanta witnessed the company “repeatedly turning down qualified older employees in favor of less qualified, younger employees.” She was fired when she questioned the actions and refused to participate and was replaced by two younger workers, according to the EEOC.

Last May, the EEOC sued iTutorGroup, an service providing online English-language tutoring to students in China, alleging that the company programmed its recruitment software to automatically reject female applicants 55 or older and male applicants 60 and over. More than 200 qualified applicants were rejected because of their age, according to the EEOC. The EEOC investigated after hearing from a female applicant over 55. She was rejected. But a day later, she submitted the same application with a “more recent date of birth” and was offered an interview, the lawsuit said.

Justin Plaskov, a Denver attorney at Colorado Employee Advocates who represents workers in discrimination cases, said the employment discrimination data is underreported because not everyone reports it.

“There’s a lot of discrimination happening but the burden to prove a discrimination case is incredibly high,” Plaskov said. “I see cases all the time where it seems like there’s discrimination happening. But because of a lack of economic damages, or a lack of corroborating evidence, it’s not a case we’d be able to take on. But yeah, I absolutely think it’s still incredibly prevalent in our workplaces.”

Plaskov, who helped the EEOC successfully win a $20.5 million award against Jackson National Life Insurance Company for discriminating against 21 workers in 2020, said he turns away more than 90% of the inquiries he receives. But he theorized that the EEOC numbers may be low and declining because states are more active. He said the Colorado Civil Rights Division is faster at investigating cases and much more robust.

According to the latest CCRD annual report, the agency, which is responsible for enforcing the state’s anti-discrimination laws for employment and housing, 11% of the 1,090 employment-related complaints filed in fiscal year 2021 were about age. Disability and discrimination based on sex were much higher, at 23% and 21% respectively.

But ultimately, it’s up to the person who faced discrimination to report it and that’s why it’s hard to know exactly how prevalent age discrimination actually is.

“Both the state and federal government rely on individuals filing charges to alert them,” Plaskov said. “That’s the system we have set up.”

Colorado needs more workers

One of the highlights of Colorado’s recovery from the COVID-19 pandemic is that people have returned to work or the job hunt at higher rates than other states. Colorado has ranked among the top states nationwide for highest rates of labor force participation. In other words, 69% of Coloradans over 16 work or are looking for work, as of December. Other states have larger adult populations that are retired or on disability and aren’t looking for a job.

But Colorado’s population is getting older. And if people in their 50s, 60s, 70s and older give up on finding work and retire, that will eat into the state’s productivity and cause a cascading economic effect, said Elizabeth Garner, the Colorado state demographer.

“We’ve just been such a young state” Garner said. “We’ve never had a lot of people over the age of 65. And (that age population) is just growing really fast. The decade we’re in right now, the fastest growth is in the 75 to 84-year-olds. And that has an even lower labor force participation rate than the 65 to 74-year-olds.”

Many people also plan to work longer anyway, partly because the toll of labor hasn’t been as harsh on their bodies as it was centuries ago. Some plan to work longer because they haven’t saved enough for retirement. The important point here is that Colorado needs all the workers it can get, she said.

“When a 50-something worker leaves the labor force, it’s much harder to get back in again,” she said. “So trying to keep the 50-somethings in and then trying to keep the 60-somethings in is really important across the spectrum. The more workers, the better.”

Danielson has worked to pass several laws promoting equity for women, people of color and a more diverse workforce. She was a prime sponsor for the Equal Pay for Equal Work Act, to narrow the gender wage gap. It went into effect in 2021 and required job postings open to Coloradans to list actual wages. Colorado’s law inspired similar pay-transparency laws in other states. Removing any request for age, birth date or high school graduation date in a job application is just another step forward.

“People are reluctant to hire older workers even though they’re some of the most valuable members of the workforce, as they have the most experience,” Danielson added.

The Democrat hasn’t heard any pushback for her Job Application Fairness bill, which has no Republican sponsors. Tony Gagliardi, state director of small-business advocacy group NFIB Colorado, is still researching the bill but questioned whether it was necessary.

“My members still are desperately looking for employees and they’re going to do everything they can to hire a worker,” he said.

While it’s legal to ask job applicants their age, Heather Tinsley-Fix, AARP’s senior adviser for employer engagement, called it risky “because it opens the employer up to the possibility of appearing to make decisions on the basis of age and to be vulnerable to age discrimination lawsuits.”

AARP Colorado supports the bill.

A similar bill in Connecticut had bipartisan support and passed unanimously in 2021 to block employers from asking prospective employees about birth dates and graduation dates. Four other states – California, Minnesota, Pennsylvania and Wisconsin – also have laws that ban age questions during the hiring process, according to AARP.

The proposed Colorado law would just close a loophole, said Andrea Kuwik, senior policy analyst with Bell Policy Center, an organization that advocates to improve the economic conditions for Coloradans. Bell Policy worked with Danielson on the bill.

The other lead sponsors of the legislation are Sen. Sonya Jaquez Lewis, a Boulder County Democrat, and Democratic Reps. Jenny Willford of Northglenn and Mary Young of Greeley.

“This is not about creating a new protected category,” Kuwik said. “We’re just trying to close a loophole and I think that’s one of the things that helped make it bipartisan.”

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