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Compliant Hiring: Avoid These Seven Topics in Job Advertisements

Published on 8/23/2015 12:00:00 AM
Compliant Hiring: Avoid these Seven Topics in Job Advertisements

Once you’ve created a job listing you’re happy with, it’s time to review the listing with a fine-tooth comb for any discriminatory language.

Title VII under the Civil Rights Act of 1964 states that employers with 15 or more employees can’t discriminate or harass in the workplace on the basis of certain legally protected characteristics, such as race, religion and sex. Over the years, the Act has been amended and new laws have been drafted to cover additional protected classes. Federal discrimination laws prohibit employers from exercising any type of preference or bias based on these protected classes. If your job advertisement isn’t worded properly, you may imply bias without even realizing it. Here are some things to consider with each protected class:

Unless the position you are filling requires a certain gender, such as a restroom attendant, you should never state any gender preferences for the position. Make sure to use gender-neutral job titles. For example, you shouldn’t specify you’re looking for a new “salesman, but, rather, a “sales representative.” “Waitress” would imply a preference for a female candidate whereas “wait staff” shows no gender preference. With respect to female candidates, remember that pregnancy is protected under the Pregnancy Discrimination Act of 1978, so never address an applicant’s childbearing plans or current family status.
Race should practically never be mentioned in job postings. The only exception is if you’re required to comply with affirmative action requirements, in which case you should state that you participate in an affirmative action program and, if applicable, applicants may be asked to fill out a voluntary identification form.
Religion also shouldn’t be referenced in job postings unless your business qualifies as a religious organization under Title VII. If you’re a conservative company, be extra cautious with the language you use to convey this. “Christian values” is obviously off-limits, but terms like “traditional,” “wholesome,” or “family values” can be tricky, too. Remember, if it isn’t directly related to the job, it shouldn’t be included. Be mindful, too, that different religions have rules that may require accommodations to your dress code or grooming standards. Stating in a job posting that the job requires someone “clean shaven,” for example, could be seen as religious discrimination since some religions require men to maintain some kind of facial hair. (It also implies that you’re looking for a man, which goes back to using gender-neutral descriptions.)
National origin
You cannot require applicants to be U.S. citizens unless it’s necessary for the job. Instead, indicate that successful applicants will be required to complete an I-9 to verify their eligibility to work in the U.S. If the job absolutely requires English language skills, try to phrase it along the lines of having an excellent command of the English language. Conversely, if the job requires speaking a different language, make sure the emphasis is on the skills. “Must speak Spanish” is okay, but “must be Hispanic” is not.
In 1974, Congress enacted the Age Discrimination in Employment Act, affecting businesses with 20 or more employees. The ADEA protects applicants 40 and older from any discrimination, so avoid any age-related terms in your job listings. You can look for applicants with a “youthful outlook” or who are “energetic,” but you can’t specify “young people.” Advertise your “entry level” jobs, but don’t use the words “recent graduate.” The words “junior” and “senior” should only be used if they’re part of the job title.
The Americans with Disabilities Act of 1990 protects disabled people from any discrimination from businesses with 15 or more employees. It’s important to include precise job descriptions that outline only duties that are absolutely necessary for the particular job. Never use the terms “able-bodied,” “strong” or “healthy.” State the exact tasks required, such as needing to move up to 50 pounds or being capable of traveling to multiple locations for inspections. Make sure to include all of the job’s essential functions.
Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), you cannot discriminate against veterans. If you’re part of an affirmative action program, you may indicate that you offer a voluntary identification form as part of the program.

Beyond these federal laws, it’s important to check your own state’s laws as some states offer protection against discrimination based on sexual orientation, criminal history, political affiliations and other factors. State laws may also be stricter and affect businesses with fewer employees than federal laws. Employment laws are constantly changing, so make sure to stay up to date on the current laws. Stay informed about recent court cases and rulings in these matters, too.

When in doubt, always ask yourself: Is this specification absolutely necessary for the job? If the answer is no, it doesn’t belong in the job posting.​​

Ashley Kaplan, Esq.
Presented by: Ashley Kaplan, Esq.,
Senior Employment Law Attorney
Federal deregulation efforts continue under the new administration. But history shows that when federal regulation slows, state and local regulatory activity increases. Nowhere is this more evident than in the area of employment law. Over the last year, many states and cities have stepped up their own legislative activity by passing a record number of new employment laws. And with each new law there is a potential poster update or new poster being issued. Depending on your state, you may now be required to post up to 21 labor law notices. And that doesn’t include local postings: more cities and counties are issuing mandatory posters than ever before.