Tag Archives: hiring practices

Help Wanted: ‘Seeking Fun Dude I Would Want To Have A Beer With’ And Other Things You Shouldn’t Advertise

Contributed by Noah A. Frank

The New Year is here!  Economic signs are trending up, and indicate that hiring will be picking up in 2016.  Because federal and state employment laws prohibit discriminatory job postings, and the administrative agencies are cracking down on both unintentional and intentional discrimination, care must be used to avoid drawing the attention of the government and other opportunist inquiries by simple “help wanted” posts.

What’s wrong with the ‘cool dude’ request?

It implies that the preferred candidate is: male, younger, a drinker, and has free time.  This discriminates against, at bare minimum, females (Title VII); older workers (Age Discrimination in Employment Act); recovering addicts (Americans with Disabilities Act); certain religions (also Title VII); and perhaps marital/family status (many state laws).  It could also imply quid pro quo sex discrimination – “if you spend time with me, you will get this job.”  All that from a fairly innocuous statement?  Yup.

EEOC guidance provides that it is illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying for a job 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.  Federal law also protects veteran status, arrest records, and use of credit/background checks.

State and local laws also protect these classes and add additional protected classes – such as marital status, number of children/dependents, medical history, ancestry, citizenship status, and even unfavorable discharge from the military.

Can I Never State a Preference?

It depends.  Some employment laws provide very limited exceptions for bona fide occupational qualifications.  These include the disability-related “direct threat” and the age-related need for a younger person (e.g., hiring an actor to play a child).  These limited exceptions rarely apply, and the employer has a significant burden to prove them.

On the other side, in certain narrow circumstances, laws permit advertising and/or intentionally recruiting traditionally marginalized protected classes.  This would include preferring to hire military veterans or qualified individuals with disabilities over other candidates.

What Can I Advertise?

Now Hiring SignGenerally, employers should advertise the essential functions of the job, as well as the knowledge, skills, and abilities a successful employee must possess.  For example, advertise that a “relevant bachelor’s degree from accredited college is required” (which indicates basic knowledge), but not “recent college graduate” (which implies younger candidates are sought).  Well drafted and accurate written job descriptions containing these requirements are given substantial weight by employment administrative agencies, especially when they exist prior to the beginning of the employment relationship.

Hopefully, 2016 brings cheer, prosperity, and increased hiring – without the headaches associated with the increasingly regulated employment atmosphere.

EEOC Issues Draft Strategic Enforcement Plan for Comment

Contributed by Jill Cheskes

As has been discussed previously on this blog, the EEOC has shifted its investigatory and litigation tactics over the last few years in a tangible way that could affect any employer at any time before the agency.  Since 2006, the EEOC has focused extensive resources on ferreting out “systemic discrimination.”  This continues to be a prime focus of the EEOC.  The agency published their Strategic Enforcement Plan (SEP) on September 4, 2012 and is seeking public input prior to voting on it on September 30, 2012. 

The SEP indicates that the EEOC’s guiding principles are based on the belief that “targeted enforcement efforts will have the broadest impact to prevent and remedy discriminatory practices in the workplace.”  To that end, the EEOC has identified is nationwide priorities as:

  1. Eliminating Systemic Barriers in Recruiting and Hiring – the EEOC will be looking at both intentionally discriminatory hiring and recruiting practices as well as facially-neutral policies that have a disparate impact;
  2. Protecting Immigrant, Migrant and Other Vulnerable Workers – the EEOC will be targeting disparate pay, job segregation, harassment, trafficking and discriminatory policies that may be affecting these workers who are unaware of their rights;
  3. Addressing Emerging Issues – Identified as ADAAA issues, LGBT coverage under Title VII sex discrimination provisions, and accommodating pregnancy;
  4. Preserving Access to the Legal System – the EEOC will target policies intended to discourage access such as retaliation, overly broad waivers, settlement agreements that prohibit filing a charge or providing information to the EEOC and failure to retain records;
  5. Combating Harassment – the EEOC wants to re-evaluate its strategies in this regard including refocusing efforts on a national education and outreach campaign for both employers and employees. 

As can be seen by these initiatives, the EEOC’s number one priority remains to root out systemic discrimination by companies and is now focusing on hiring practices, which is likely something that most employers don’t address nearly as much as discrimination or harassment of existing employees. 

Additionally, the EEOC’s focus on vulnerable workers and emerging issues shows a true determination to address issues that are probably not fully on employers’ radar screens.  The EEOC’s SEP makes it clear that employers will continue to face many challenges when responding to charges of discrimination and will continue to have an aggressive approach by the EEOC.