Ban the Box Laws in Colorado: Criminal History in Hiring

Federal law does not impose a blanket ban-the-box requirement for all employers nationwide. However, the Equal Employment Opportunity Commission (EEOC) issued guidance under Title VII of the Civil Rights Act of 1964 (42 U.S.C. section 2000e) stating that employers cannot categorically exclude applicants based on criminal history without considering job-relatedness and the nature of the offense.

The Fair Credit Reporting Act (15 U.S.C. section 1681 et seq.) regulates how criminal background reports are used and requires employers to provide notice and obtain written consent before conducting background checks. Federal law does not require employers to delay criminal history inquiries; rather, it requires individualized assessment when criminal information is considered.

Federal contractors and certain federal agencies have more stringent requirements. Many federal contractors are prohibited from asking about convictions until after a conditional job offer due to executive orders. However, most private employers operating outside federal contracting are not federally restricted from asking about criminal history at any stage of hiring, though they must comply with Title VII's non-discrimination principle in how they use such information.

Colorado Revised Statutes section 24-71-308 and 24-71-309 establish Colorado's ban-the-box law, which is considerably stronger than federal law. Colorado requires all employers with one or more employees to refrain from inquiring about an applicant's criminal history—including arrests, charges, or convictions—until after making a conditional job offer.

Unlike federal law, which permits criminal inquiries at any stage if applied consistently and non-discriminatorily, Colorado imposes an absolute timing restriction. Employers cannot ask about criminal history on applications, during interviews, or in initial background checks. Only after a conditional offer of employment has been extended may an employer inquire about or consider criminal records.

Colorado law protects against convictions but does not protect arrests or charges that did not result in conviction. An employer may legally ask about pending charges or arrests; however, the practical effect of the law still delays this inquiry. The statute applies to all Colorado employers, regardless of size, making it more inclusive than many federal protections.

When an employer does inquire after a conditional offer, Colorado law requires employers to exercise individualized judgment. Employers must consider the nature of the offense, time elapsed, rehabilitation efforts, and job-relatedness before withdrawing an offer. This creates an affirmative obligation absent in federal law. Violations expose employers to civil claims for damages and attorney's fees, and the Colorado Attorney General can enforce the statute. State law does not carve out exceptions for certain industries, though safety-sensitive positions may still be evaluated after conditional offer based on individualized assessment.

Colorado's ban-the-box law contains limited exceptions. First, the law does not protect applicants who were arrested but never convicted. Employers may legally inquire about arrests not resulting in conviction, though the practical effect of the timing restriction on conditional offers still applies to the investigative process.

Second, the statute does not mandate that employers hire applicants with criminal records or prevent employers from considering criminal history as a disqualifying factor after conditional offer. Employers retain the right to withdraw an offer if they determine the conviction is substantially related to the job duties or poses a legitimate business risk. The law requires individualized consideration but does not mandate hiring.

Third, the law does not apply to pre-employment inquiries unrelated to criminal history. Employers may ask about other background matters, education, employment history, and references without restriction. Ban-the-box only constrains criminal-specific inquiries.

Fourth, the statute does not override industry-specific federal licensing requirements. Positions requiring federal clearances, certain professional licenses, or positions in heavily regulated industries (banking, securities, some healthcare roles) may have separate federal or professional requirements that supersede state law. However, the employer must still comply with the conditional offer timing requirement for the state law inquiry itself.

Fifth, employers are not required to hire applicants with certain criminal backgrounds. Individualized assessment does not mandate a favorable decision; it only requires the employer weigh the factors articulated in the statute before withdrawal of offer. An employer can decline to hire based on a conviction if it exercises this discretion in good faith and documents the reasoning.

Step 1 — Document All Communications: If you believe an employer violated Colorado's ban-the-box law by asking about criminal history before a conditional offer, preserve all evidence. Save job postings, application forms, emails, and interview notes. Document dates, times, and the content of any criminal history inquiry (what was asked, by whom, when). Photograph or download online application screens. Write down the names of interviewers and any verbal questions about criminal background. Keep records of when the conditional offer was or was not made and in what form.

Step 2 — Consider Internal Complaint: Contact the employer's human resources or compliance department in writing. Send an email or letter stating that you were asked about criminal history before a conditional job offer was extended, cite Colorado Revised Statutes section 24-71-308, and request written confirmation of when the conditional offer was made. Request a written response explaining the timing of the criminal history inquiry. Preserve the employer's response. Internal complaints do not always succeed, but documentation of the employer's explanation strengthens your case if you proceed externally.

Step 3 — File with Colorado Attorney General: The Colorado Attorney General's office enforces ban-the-box violations. File a complaint online at colorado.gov/attorney-general or call the Office of Consumer Protection at (720) 508-6200. Alternatively, submit a written complaint by mail to: Colorado Attorney General, Consumer Protection Section, 1300 Broadway, 10th Floor, Denver, CO 80203. Include your name, contact information, the employer's name and location, dates of the violation, a description of the criminal history inquiry, and copies of all evidence (application, emails, notes). The Attorney General investigates complaints at no cost to you.

Step 4 — Investigation Process: Once filed, the Colorado Attorney General's office will review your complaint. If they determine there is probable cause of a violation, they may initiate an investigation. The Attorney General may issue a civil investigative demand to the employer requiring production of documents and testimony. This process typically takes 2-6 months. The Attorney General may resolve the matter through settlement with the employer, requiring corrective action, damages, and cessation of the unlawful practice. Some complaints are dismissed if insufficient evidence of violation is found.

Step 5 — Consult an Employment Attorney: For civil damages, you may also file a private lawsuit in Colorado district court. Consult a Colorado employment law attorney who handles discrimination and hiring violations. Private attorneys can pursue damages for emotional distress, lost wages if you were not hired, and attorney's fees. The statute of limitations for a breach of statutory duty claim is typically 2 years from the date of violation. An attorney can evaluate whether the Attorney General's enforcement is sufficient or whether a private claim is necessary, and can represent you in settlement or litigation.