Advertising Job Openings Without Discriminating

As an employer, your work to prevent an employment discrimination lawsuit starts from the beginning: in the way you advertise the job opening. According to the Equal Employment Opportunity Commission (EEOC), the number of charges filed by employees and applicants alleging discriminatory advertising rose from 49 in 2013 to 121 in 2014.  The vast majority of the claims filed in 2014 (111) were for advertisement discrimination against older job applicants, but may also involve gender discrimination, disability discrimination or other discriminatory conduct.

Recently, the popular restaurant chain Ruby Tuesday settled a claim with the EEOC for $100,000.  Two male employees sued the restaurant after an internal job posting was advertised specifying “only females would be considered” for temporary summer positions in a Utah resort town.  Because the summer resort employees would be residing together for several weeks in company-housing, the restaurant reasoned that it would be best if all employees were of the same gender.

While violations such as a gender-specific job announcement may seem obvious in hindsight, there are many subtle ways discrimination is included in employers’ advertising.  Have you ever seen an ad in the paper seeking “recent college graduates”?  You might consider this to mean that a college degree is required for the job.  But the EEOC could look at this as way of screening out older applicants in violation of the Age Discrimination in Employment Act (ADEA).  The ADEA and its Texas equivalent statute make it illegal for employers (with 15 or more employees) to discriminate against workers age 40 and over.

To avoid problems such as the one Ruby Tuesday faced, carefully consider the wording of your advertising, most specifically, your job postings.  Don’t include language that could be interpreted as an exclusion of applicants on the basis of age (40 and older), race, national origin, sex, pregnancy, or disability.

So what can you say in your job postings?  If you have 15 or more employees, here are a few tips to avoid a discrimination claim:

  • List the required job qualifications and specific educational or technical requirements to screen out unqualified applicants.
  • Stick to your advertised requirements when reviewing the applicants. If you don’t receive any resumes with these specific qualifications, advertise again with lowered requirements. This will help you avoid the taint of discriminating against lesser-qualified applicants who may be in a protected class.
  • Include the essential physical and mental requirements in the job description to protect yourself from a disability discrimination claim. If a qualification for the job is the ability to lift 50 pounds or to stand for long periods of time, this will let an applicant know right up front so there is no question that it is a required qualification.
  • Avoid using terms like “college student” or “recent college graduate”. Instead, describe the job as “entry level” or as no prior experience required.
  • Use neutral language and specify that you are an equal opportunity employer.

 

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