Employers must navigate a minefield of regulations from what they are permitted to include in a job advertisement, to what questions they can ask in interviewing potential applicants. Taking the time to establish hiring procedures which comply with all applicable federal and state regulations is extremely important in helping employers find potential employees who have the necessary job-related qualifications and avoid claims of discrimination that might arise due to unfair hiring practices. This article will focus on job advertisements and the pitfalls that should be avoided. I will follow up with an article later this year concerning the do’s and don’ts concerning employment applications and conducting job interviews, so stay tuned.

Employers must navigate a minefield of regulations from what they are permitted to include in a job advertisement, to what questions they can ask in interviewing potential applicants.

Job Advertisements

It has been said that the best way to find new employees is via referrals from other professionals in the industry who have worked with the potential applicant and who are aware of the skills, work ethic, and work product of the potential applicant. However, given the litigious nature of employment law, such referrals seem to be more infrequent these days. Employers looking for qualified candidates are therefore left with either hiring a recruiter, or placing an ad in the classifieds and/or advertising via the internet in hopes to find the right candidate for the job.

While advertisements are a relatively inexpensive way to recruit job applicants, care needs to be taken if an employer decides to place an advertisement for a job. The same is true even if the employer is referred a potential applicant, as employers should keep in mind that traditional legal principles regarding selection and hiring still apply no matter what medium is used to advertise.

The following considerations should be made in order to avoid violating federal and state statutes and regulations when placing advertisements.

It is illegal for an employer to publish in a job advertisement a preference for or discourages someone from applying for a job because of their protect class (i.e. a person's race, color, national origin and ancestry, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), religion, disability, military status, genetic information….). It is further illegal for an employer to take these factors into consideration when making decisions about job referrals.

When preparing the advertisement, and in order to attract serious candidates, employers should consider what information they want to place in the ad. Generally, a company description, identification of the job that is being offered, the qualifications of the job, (e.g. level of education, licensing requirements), and any other required job-related skills necessary for the job being offered is a good start. Depending on the industry and the job being offered, an employer may also wish to identify the salary and benefits being offered in order to compete with other jobs that are on the market.

Special care should be taken in what language goes into the ad so as to avoid using terms that could potentially lead to a claim of discrimination. Thus, avoid discriminatory language based on protective classes, unless the reference is to a bona fide occupational qualification and is essential to a particular position or occupation. For example, an age-based ad that seeks "recent college graduates" may discourage applicants over 40 years old from applying and may violate the law, unless there is bona fide occupation qualification that is essential to a particular position or occupation. Taking out the words “recent college graduates” and replacing with “applicant must have a college degree”, would avoid the age-based discriminatory terms and appropriately seek all candidates with a college degree, which is essential for the position being advertised.

Additionally, if you decide to prepare an advertisement, employers should include an Equal Employment Opportunity Commission (“EEOC”) statement that all qualified applicants will be considered for employment without regard to their membership in a protective class (i.e. race, national origin, sex, age, religion). The purpose of an EEOC statement is to comply with the EEOC law, but there’s also a marketing aspect to it as potential candidates will likely measure the employer by the words used in such statements. You can simply use 3 words “Equal Opportunity Employer”, or depending on your industry, employers may want to use words that stand out and promote the company’s culture. Below are two examples that I pulled from the internet:

U.S. Federal Government
“The United States Government does not discriminate in employment on the basis of race, color, religion, sex (including pregnancy and gender identity), national origin, political affiliation, sexual orientation, marital status, disability, genetic information, age, membership in an employee organization, retaliation, parental status, military service, or other non-merit factor.”

Google
“At Google, we don’t just accept difference — we celebrate it, we support it, and we thrive on it for the benefit of our employees, our products, and our community. Google is proud to be an equal opportunity workplace and is an affirmative action employer.”

Another factor to take into consideration when preparing advertisements is to ensure that the information about the job opening and the application process is available to individuals with disabilities (i.e. if job ad provides only a telephone number to call for info, a TTYor TDD device number should also be included). The following sample from Facebook takes this into consideration in placing advertisements.

Facebook
“Facebook is proud to be an Equal Employment Opportunity and Affirmative Action employer. We do not discriminate based upon race, religion, color, national origin, gender (including pregnancy, childbirth, or related medical conditions), sexual orientation, gender identity, gender expression, age, status as a protected veteran, status as an individual with a disability, or other applicable legally protected characteristics.

If you need assistance or an accommodation due to a disability, you may contact us at accommodations-ext@fb.com or you may call us at 1+650-308-7837.”

The information employers provide in their advertisements varies substantially depending on the position being filed. Thus, when preparing advertisements, employers should think about the types of information you really need to disclose in order to attract serious potential applicants. As a general rule, employers should keep in mind when preparing job advertisements that the qualifications or characteristic provided for must be job-related and care should be taken to avoid using discriminatory language based on protective classes.

Additionally, employers should have in place a document retention system to maintain copies of all advertisements and any other materials used to create the ad so that in the event of a claim for discrimination, the employer has the backup documents readily available to defend against such a claim. Finally, if there are any questions about whether an advertisement complies with the law, employers should consult with their attorney to make sure their advertisements, and other employment related policies, comply will all applicable federal and state laws.

Should you have any questions regarding this article or any other employment related questions, please do not hesitate to contact our team at 781-817-4900 or info@mbmllc.com.