Employer Advertising and Recruiting

Whatever method an employer uses to advertise and recruit for new employees, the employer must ensure that their practices comply with federal law which prohibits discriminations against an applicant because of the applicant’s race, color, religion, gender, national origin, age, disability or genetic status.

Most employers with at least 15 employees are covered by federal anti-discrimination laws. Employers with at least 20 employees are covered in the case of age discrimination. The law also applies to most labor unions and employment agencies. The laws apply to all phases of advertising for and recruiting new employees.

The U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency that is tasked with enforcing federal anti-discrimination law, specifically Title VII of the Civil Rights Act of 1964 (the Act). The Civil Rights Act also prohibits employers from retaliating against an applicant who claims their rights under the law.

Discrimination against applicants and employees who are age 40 and older is prohibited by the federal Age Discrimination in Employment Act (the ADEA).

In addition, employers are prohibited from discriminating against a qualified applicant for a job who has a disability. Specifically, Title I of the Americans with Disabilities Act (the ADA) prohibits discrimination on the basis of disability. The ADA applies to private employers with 15 or more employees. It also applies to state and local governments.

Discrimination can be avoided by communicating to everyone involved in recruitment and hiring the need to take following steps:

• Ensure that recruitment does not discriminate in violation of the Act, the ADEA and the ADA, as well as applicable state law;
• Apply the same standards to all applicants for the same position;
• Provide reasonable accommodations to applicants who need assistance because of their medical condition or religious beliefs;
• If an organization tests applicants or does background checks that have an especially negative impact on applicants who are members of a protected class, make sure the practice can be justified under the law;
• When interviewing applicants, refrain from asking certain questions that can be interpreted as discriminatory;
• Keep applications and interview notes for at least one year.

It is additionally important to keep in mind that many states have their own laws which prohibit discrimination in advertising, recruiting and hiring based on membership in protected classes, age and disability. Thus, an employer must inform themselves of the law in the state in which they do business.

When an employee is terminated or quits, many employers hurry to advertise the vacant position immediately and hire to fill the vacancy. Most employers turn to three main methods of recruitment:

• Internal Sourcing: This involves sending out a company-wide message within a company. Some companies have a website that is company-managed where open positions are announced, and current employees can apply for different positions within the organization. This is often an approach used by large employers such as government agencies, companies with multiple locations, and academic institutions;
• External Sourcing: This involves using recruiting methods that reach outside a company or other entity, to find the best candidate. Companies can use professional recruiters, job boards, newspaper ads, their own website application portal or other outside job recruitment website to generate applicants. Another option for external sourcing is job fairs and college recruitment events;
• Third-party Sourcing: This approach can be more expensive than the other two because it uses a professional recruitment agency to find qualified candidates. This method can be a great option for employers who are looking for employees with a specific skill set or a set of skills that are more difficult to find.

What Must Be Included in a Job Posting?

Employers do not want to waste time reviewing applications that do not meet the needs of their business. By including some basic elements, the advertisement can eliminate applicants who are clearly not qualified and attract those who might be a good fit. A good job posting should include the following:

• Accurate Job Title: The title of the position should reflect standards in the industry in which a company operates and reflect the real duties and responsibilities of the position;
• Summary of Job Duties: The summary of the job duties should be accurate and in the form of a list or paragraph that summarizes what the candidate will be expected to do and how they fit within the organization;
• Requirements: If a person needs to have a specific degree, certificate or license, this should be clearly stated. Also, indicate the minimum amount of years of experience a person is looking for and the qualities that they should be able to demonstrate;
• Job Location: State clearly the location to which the candidate will be required to report for this job.
  • If an organization has multiple locations, an ad should specify where the particular position advertised will be stationed. If travel is required, indicate where and with what frequency travel is required;
• Accommodations: Offer to accommodate any applicant who requires reasonable accommodation to apply for a position in accordance with the ADA;
• Statement of Equal Employment Opportunity Compliance: Be sure to finish your posting with language that indicates the advertising organization complies with the EEOC guidance in hiring.

What Is Discrimination in Employment Advertising?

Again, it is illegal in the U.S. to advertise in a way that discriminates against a person or group of people based on their membership in a protected class. The following are a list of characteristics that are protected under U.S. law:

• Race, color, or ethnicity;
• National origin or ancestry;
• Religion;
• Marital status;
• Family or parental status;
• Age;
• Physical or mental disability unless the person has a bona fide qualification;
• Gender or gender identity;
• Sexual orientation; and
• Disability.

What Content Is Illegal in a Job Posting?

Language that demonstrates a preference for or a prohibition of a group of people based on their membership in a protected class on the list above. There may be exceptions that apply to a particular organization, such as a religious organization hiring a reverend that is a member of their religion.

What Is Discrimination in Employment Provisions?

When a person begins interviewing qualified candidates and possibly continuing with the hiring process, it is important to not ask questions or make statements that would demonstrate those illegal preferences or prohibitions.

Make sure interview questions are designed to find out whether that person is qualified to perform the job responsibilities and would be a good fit in the organization based on their personal qualifications and personality traits. Obviously, questions about a person’s family, marital or parental status, for example, would be prohibited.

Are There “Illegal” Questions I Should Not Ask in an Interview?

Other prohibited questions would be questions about marital status, sexual orientation, whether the applicant has children, what religion they practice, what their national origin is and the like. A person should never make any statements that indicate that they prefer or do not like a group of people based on the traits listed above.

So, statements such as, “our business is a family-oriented organization and we are looking for a person who has a family and would fit in here in that way,” should not be made.

How Do I Attract Qualified, Diverse Applicants without Violating the Law?

One way to attract diverse applicants is to participate in job fairs sponsored by minority or religious organizations. A person should draft interview questions that focus on the job duties that are important to the position that is available.

Instead of being concerned about hiring a parent with small children who may have less time available for their work, applicants should be informed about the intensity and time commitment required to perform successfully at an organization. Then the applicant can make the choice for themselves about whether their other commitments, family or otherwise, would limit their ability to devote most of their time to their job.

Do I Need a Lawyer to Help Me Recruit New Employees?

A discrimination lawyer can help write advertisements for available positions, applications and interview questions that comply with all anti-discrimination laws. In addition, your local discrimination lawyer is familiar with state law in the state in which you do business, so can help you comply with state law as well.

If you are facing claims that you have discriminated in your hiring processes, a lawyer can investigate the claim and advise you regarding the case. They can also represent you in dealings with government agencies and defend your actions in court, if necessary.