Arrest Record Discrimination Laws in Colorado

Federal law does not directly prohibit employment discrimination based on arrest records. However, federal civil rights statutes, including Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e) and 42 U.S.C. § 1981, prohibit discrimination when arrest record policies have a disparate impact based on race, color, or national origin.

The Equal Employment Opportunity Commission (EEOC) enforces these laws and has issued guidance stating that blanket exclusions of individuals with arrest records can violate Title VII if the arrests are not job-related and consistent with business necessity. Employers with 15 or more employees are covered by federal law.

Federally, employers may consider arrest records if there is a legitimate business reason related to the specific job duties, but they must follow the EEOC's individualized assessment approach—evaluating the nature and gravity of the offense, the time elapsed since the arrest, and the job's requirements.

Remedies under federal law include back pay, compensatory damages, injunctive relief, and attorney fees. However, federal law does not provide a blanket prohibition on arrest record discrimination; it focuses on disparate impact and disparate treatment based on protected characteristics.

Colorado law provides stronger protections than federal law by explicitly prohibiting employment discrimination based on arrest records, regardless of whether the discrimination involves a protected class. Colorado Revised Statutes § 24-5-101 makes it illegal for employers to discriminate in hiring, advancement, compensation, or termination based on an arrest not resulting in conviction.

Under C.R.S. § 24-5-103, employers are restricted from inquiring about arrests during the application process or initial employment screening. This applies broadly to all employers in Colorado, regardless of size—there is no minimum employee threshold. The law covers all private employers, government agencies, and public corporations.

Colorado's law is significantly stronger than federal law because it provides an absolute protection for non-conviction arrests rather than requiring proof of disparate impact or disparate treatment based on race or another protected class. Employers cannot use a blanket policy of excluding individuals with arrest histories; they must evaluate each situation individually and demonstrate a genuine business necessity directly tied to the job.

Unique to Colorado: the state also recognizes the right to sealing of arrest records (C.R.S. § 13-64-403), and once sealed, an individual may lawfully deny or fail to disclose the arrest in response to employer inquiries. Colorado employers cannot inquire about sealed arrests, and if they do, the applicant may legally respond that no such arrest occurred.

Remedies under Colorado law include back pay, front pay, compensatory damages for emotional distress, punitive damages if the employer's conduct was particularly egregious, and attorney fees and costs. The Colorado Department of Labor and Employment (CDLE) enforces these protections.

Colorado employers may consider arrest records in limited circumstances if they can demonstrate a genuine business necessity and the arrest is job-related. The most common exception applies to positions requiring background checks for safety or security reasons (e.g., childcare, healthcare, security positions), provided the employer follows an individualized assessment and does not apply a blanket exclusionary policy.

Federally required background checks may sometimes justify inquiry into arrest histories if the employer demonstrates that the position requires it by federal law or regulation. However, Colorado courts have held that even in these cases, employers must still conduct an individualized review and cannot automatically disqualify candidates based on arrest history alone.

Another exception involves sealed arrests. Once an arrest record is sealed under C.R.S. § 13-64-403, employers have no legal right to know about it, and applicants or employees may lawfully deny or fail to disclose it. If an employer inquires about sealed arrests, the individual is not required to disclose them, and the employer cannot take adverse action based on non-disclosure.

Unconvicted arrests that are otherwise job-related may also be considered if the employer demonstrates that the nature of the offense, the time elapsed, and the job requirements make the arrest relevant. However, this requires case-by-case evaluation, not categorical exclusion. Employers cannot rely on a policy that automatically bars applicants with any arrest record.

Bona fide occupational qualifications (BFOQs) are narrowly construed in Colorado. While an employer might argue that an arrest for theft is relevant to a cashier position, Colorado law requires individualized assessment rather than categorical rules. Timing matters—arrests many years in the past with no subsequent incidents carry less weight than recent arrests.

Step 1: Document Everything. Keep detailed records of all employment communications, including job postings, interview notes, rejection letters, and any questions asked about your arrest history. Save email communications with HR, hiring managers, or supervisors. Document the timeline: when you applied, when you were interviewed, when you were rejected or terminated, and when the employer inquired about your arrest record. Take screenshots of online applications that ask about arrests. Write down the names and titles of people involved in the hiring or termination decision, and dates of all relevant interactions. Keep copies of any written policies the employer provided that reference background checks or arrest history.

Step 2: Attempt an Internal Complaint (Optional but Recommended). Contact your employer's HR department or management in writing (email or certified letter) and state that you believe you have been discriminated against based on your arrest record. Be clear and specific: explain what happened, when it happened, and how the employer's action violated Colorado law. Request a response within 10 business days. This creates an internal record and may prompt the employer to correct the action. If the employer responds positively, document that response. If they do not respond or deny your complaint, keep the letter and their response—this strengthens your later complaint. Do not assume this step will jeopardize your job; Colorado whistleblower protections (C.R.S. § 8-1-101 et seq.) protect employees who assert their legal rights.

Step 3: File a Complaint with Colorado Department of Labor and Employment (CDLE). You have 6 months from the date of the alleged violation to file a discrimination complaint. Contact the Civil Rights Division of CDLE at the address or online portal below. Complete the intake form or call the intake line to report the discrimination. You will need to provide: (1) your name, address, and phone number; (2) the employer's name and address; (3) the date(s) of the alleged discrimination; (4) a detailed description of what happened and why you believe it was discrimination based on arrest record; (5) the names of any witnesses; and (6) copies of documentation (emails, job postings, rejection letters, etc.). File as soon as possible after the violation—do not wait until the 6-month deadline approaches. CDLE's Civil Rights Division does not charge a filing fee.

Step 4: Expect the Investigation Process. After you file, CDLE will send you a case number and assign an investigator. The investigation typically takes 60–90 days but can extend longer if the case is complex. The investigator will contact you for a detailed interview and may request additional documents. You will be asked to provide evidence supporting your claim and explaining the employer's action. CDLE will then contact the employer and request a response to your allegations. The employer will have an opportunity to provide their side of the story, documents, and witness statements. During this phase, the investigator may conduct interviews with HR staff, managers, and other employees. You may be asked for additional information as the investigation progresses. Do not discuss the investigation with coworkers beyond what is necessary, as this could affect witness credibility.

Step 5: Consult an Employment Attorney. You may consult an attorney at any stage, but consider doing so before filing your CDLE complaint if you have significant documentation or if the situation involves retaliation or ongoing discrimination. An employment attorney can help you assess the strength of your claim, gather evidence, prepare your complaint, and represent you during CDLE's investigation. Many employment law attorneys in Colorado work on a contingency basis, meaning they charge no upfront fee and are paid from any settlement or award. Contact the Colorado Bar Association's lawyer referral service if you need help finding an attorney specializing in employment discrimination. An attorney is particularly important if the case moves to litigation or if you are seeking damages beyond back pay.