T
he equinox has come and went, meaning warm weather is thankfully approaching. This also means spring hiring season is here for many employers. However, caution is advised. Given the ease of un-vetted online job postings, many forget that these posts are legal minefields (and public too). Federal, state, and local agencies (as well as plaintiffs’ attorneys) can see job ads just as well as potential candidates. As you pack away the winter coats, make sure to dust off your job posts and remove any potential legal snares.
One of the most common issues we see regarding job ads is “preference” language. The Equal Employment Opportunity Commission (“EEOC”) explicitly states that it is “illegal for an employer to publish a job advertisement that shows a preference . . . because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.” While this may seem obvious, inadvertent word usage that may show a preference for one protected category over another is often overlooked.
For example, the EEOC notes that the phrase “recent college graduates” may indicate a preference for younger employees, and may violate the law. In addition, historically gendered job titles are frequently used in the hospitality industry, such as “waitress,” “hostess,” or “delivery boy.” Government agencies will often argue that such terms indicate a preference for one sex, gender, or age over another, even if all sexes, genders, and ages were welcome to apply. Moreover, legitimate job requirements, such as “must be able to lift ‘x’ pounds,” must be evaluated with legal counsel to ensure that disability and accommodation laws are complied with, as well as to ensure no overtime exemption misclassification issues are created.
In addition, in some states and localities additional discrimination protections are offered above those available under federal law. The New York City Commission on Human Rights (“NYCCHR”) issued notable guidance in 2015 on the treatment of transgendered employees and applicants. The NYCCHR has since aggressively investigated offending job advertisements that indicate a proclivity toward traditional gender categories, among other problematic conduct. (More information on NYC’s transgender guidance is available here.)
However, remember that simply sanitizing one’s advertisements is not enough. Hiring practices matter too. The EEOC notes that “an employer’s reliance on word-of-mouth recruitment . . . may violate the law” where the newly hired employees mirror the current workforce.
In sum, it is critical to review all job advertisements for problematic language, and train human resources and hiring personnel to be aware of these issues. Discriminatory job language can cause unneeded headaches with federal, state, and local governmental agencies, or that job posting may be “Exhibit A” in your next lawsuit.