By: Savannah Parsons
Were you aware that employment discrimination does not only apply to current employees? Employment discrimination also applies to potential employees. Therefore, avoiding liability for employment discrimination starts with job advertisements.
Depending on how they are written, in-person and online job advertisements can impact employment discrimination claims. Potential employees may use job advertisements to help prove hiring discrimination claims, and the information provided in the job advertisement may even have consequences for claims of discrimination from current employees. To avoid discrimination claims, employers must be acutely aware of their hiring process which includes keeping track of how they advertise available jobs and who they advertise those jobs to. This article discusses what employers need to know when drafting their job advertisements.
How Employment Discrimination Claims Work
The first thing employers need to understand about employment discrimination is that it is illegal to discriminate against current and potential employees based on their race, color, religion, sex (gender identity, sexual orientation, and pregnancy), national origin, age (40 years or older), disability, or genetic information. It is important to note that employment discrimination laws prevent facial and facially neutral discrimination based on these protected categories. Discrimination in an employment context means an employer has unfairly treated or harassed current or potential employees for belonging to a protected category, denied reasonable workplace accommodations, or asked improper questions about medical information.
The first step in an employment discrimination claim is for a current or potential employee to file a charge with the proper governmental agency, like the U.S. Equal Employment Opportunity Commission. Each state has its own version of the federal agency where claims can be filed or cross-filed between the state and federal agencies. Sometimes, like when an employer has very few employees, the employee must file the claim with a state agency. Additionally, in some states and with certain types of claims, the employee may file the claims privately without involving an agency. The agency assesses the claim and determines whether there is probable cause to file a lawsuit during the second step of the claims process. If the agency determines probable cause exists, they will inform the claimant of their decision. The claimant then has 90 days to file suit.
Things to consider in Job Advertisements
Avoid Facial Discrimination
The first and most obvious thing to avoid is posting job advertisements that are explicitly discriminatory. Job advertisements should never post requirements directly related to the categories protected by employment discrimination laws. As a reminder, the protected categories are race, color, religion, sex (gender identity, sexual orientation, and pregnancy), national origin, age (40 years or older), disability, and genetic information.
Explicitly discriminatory job advertisements are easy to avoid, especially when the employer familiarizes themselves with the federally protected categories and any additional categories protected by state laws. To ensure a job advertisement is not explicitly discriminatory, avoid posting requirements like “female candidates only,” “Americans only,” or “native English speaker needed.”
Avoid Facially Neutral Discrimination
While most employers probably know not to use the facially discriminatory language discussed above, there are some nuanced job requirements that employers should also check for before posting. Some job requirements seem innocent, but when a critical eye examines them, the requirements show signs of discrimination. For example, a job advertisement that uses phrases like “recent college grad,” “proficient experience with technology,” or “fresh and vibrant personality” in its requirement section raises red flags for potential age discrimination. Although the job advertisement itself may not be enough to hold an employer liable for discrimination, should a person over 40 years old bring a claim using the above advertisement in conjunction with other proof of discrimination, the advertisement may help them be successful in their claim.
Only List Real Requirements
Since current employees can use job advertisements to prove employment discrimination and potential employees can use them to prove hiring discrimination, employers need to make sure they only list job requirements that are really requirements. The requirement section of a job advertisement should never list pretextual requirements meant to disqualify a certain type of candidate. Pretextual requirements will likely open up the employer to hiring discrimination liability. For instance, stating that frequent travel is a requirement for the job when it is not really a requirement could be seen as a way to dissuade pregnant people, older individuals, or persons with disabilities from applying.
Advertise to Everyone
Employers should also avoid exclusively advertising to particular demographics. Exclusively advertising to some people but not others will likely result in potential employees who belong to one or more protected categories being left out of the hiring process. For example, only advertising to a specific age group, a particular sex, or a specific religious group can cause potential issues. In practice, employers should post job advertisements in a variety of places, accessible to many kinds of people, to avoid exclusive advertising.
Hire Employees that Match the Posted Job Requirements
Employers wanting to avoid discrimination claims will do more than just ensure their job advertisements do not discriminate through facially discriminatory, facially neutral, or pretextual language. A cautious employer will follow through on hiring employees who possess the requirements in their posted job advertisements. Employers hiring employees who do not meet the posted job requirements put themselves at risk of a potential employee filing a discrimination claim using the job advertisement as proof that the requirements had a discriminatory purpose.
Final Thoughts
Overall, employers must avoid posting job advertisements that include explicitly discriminatory job requirements, requirements that have discriminatory implications, and requirements that are not real requirements. Employers should also make sure they vary where they post job advertisements and only hire employees who fit the posted job requirements. This article is in no way an exhaustive or definitive list of things to avoid in job advertisements. Rather, these are just some things to consider. It is always best for employers to consult with an employment discrimination attorney for specific questions and guidance on what they should or should not put in a job advertisement.
This post has been reproduced with the author’s permission. It was originally authored on February 11, 2022, and can be found here.
Savannah Parsons, at the time of this post, is a Penn State Dickinson Law graduate. She is originally from Bath, New York, and graduated from Troy University. Savannah is interested in family and disability law.
Sources:
Prohibited employment policies/practices, U.S. Equal Employment Opportunity Commission. (n.d.). Retrieved February 11, 2022.
What is employment discrimination? U.S. Equal Employment Opportunity Commission. (n.d.). Retrieved February 11, 2022.
Workplace fairness. Midwest New Media, L. L. C. (n.d.). Retrieved February 11, 2022.