Job board mistake that can lead to bias claims
September 25, 2009 by Sam NarisiPosted in: Discrimination, HR Tech, Hiring, In this week's e-newsletter - Tech, Latest News & Views
When does attempting to recruit a diverse group of applicants cross the line and become illegal discrimination?
In a recent opinion letter, the EEOC tried to clear up some confusion over the wording of help wanted ads.
The question: Does including a phrase such as “women and minorities encouraged to apply” break the law?
The answer: No, according to the EEOC.
Encouraging certain groups to apply doesn’t mean you’re biased against or in favor of any type of person.
However, the letter points out that some companies make the mistake of using similar — but discriminatory — phrasing. For example: “We are seeking women … ”
“Seeking” implies a preference for that group. Therefore, a court would likely consider it to be illegal bias.
Read the entire Opinion Letter here.
Tags: Discrimination, eeoc, job ads
September 29th, 2009 at 9:26 am
So, “white men are encouraged to apply” doesn’t break the law? Hmm …
Please don’t flame me, I’m just playing the Devil’s Advocate.
September 29th, 2009 at 10:21 am
OK – just playing along, here…
I think this kind of preferential language is used when you’re hiring for a job where you typically see mostly one category of people in. For example, computer programmers – almost all of the ones I know are male. I know some women, sure – but just a handful.
I’d imagine saying something like “men are encouraged to apply” would be OK in a posting for nurses, where you typically see almost all women. Not sure race would ever have anything to do with it, though.
September 29th, 2009 at 11:29 am
Men are encouraged to apply in any job, not just nursing, and the same for women, hell even women are encouraged to apply for a nursing position is ok.
September 29th, 2009 at 1:16 pm
This really strikes me as odd because I know I have read about legal issues regarding the use of statements like “great job for students” in job postings. If I remember correctly, a phrase similar to this was found to be discriminatory to older applicants as it discouraged them from applying. I wil research this to be sure.
September 29th, 2009 at 1:19 pm
I found this:
On a July 3, 1989, the EEOC issued a policy guide explaining the Commission’s view that advertising and pre-employment inquiries that make reference to an individual’s age. The following represents the Commission’s views as expressed in that guidance.
A. General
The ADEA makes it unlawful, unless a specific exemption applies, for an employer to utilize job advertising that discriminates on account of age against persons 40 years of age or older. Specifically, sec. 4(e) of the ADEA provides as follows:
It shall be unlawful for an employer, labor organization, or employment agency to print or publish, or cause to be printed or published, any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification, or discrimination, based on age. 29 U.S.C. §623(e).
The Commission interpretative regulation further develops the statutory language by providing the following guidance:
When help wanted notices or advertisements contain terms and phrases such as “age 25 to 35,” “young,” “college student,” “recent college graduate,” “boy,” “girl,” or others of a similar nature, such a term or phrase deters the employment of older persons and is a violation of the Act, unless one of the exceptions applies. Such phrases as “40 to 50,” “age over 65,” “retired persons,” or “supplement your pension” discriminate against others within the protected group and, therefore, are prohibited unless one of the exceptions applies. 29 C.F.R. § 1625.4(a).
September 29th, 2009 at 1:22 pm
So…it is ok to prefer to hire from a protected class as long as it does not discriminate against another protected class. As the article above states, it is ok to encourage women or minorities to apply but Debbie’s comment about white males would likely be considered discriminatory…
Am I the only one who thinks the pendulum has swung too far in this direction??
September 29th, 2009 at 3:06 pm
“Only Computer Programmers are encouraged to apply…”
“Only people who actually have real-world experience are encouraged to apply…”
SOOO discriminatory.
j/k
October 5th, 2009 at 12:17 pm
Lajeli, I agree with you. Why state any preference? Why not hire the best candidate for the job, regardless of race, color, religion, age, etc.?
RWA – no clue what your comment is supposed to mean. I was merely thinking of an example where one might see “Men encouraged to apply.” I’m not supporting that kind of language in job ads.
October 5th, 2009 at 12:44 pm
Absolutely Lauren! I personally would like to see the best person for the job get the job. I learned early in life that the world would be a much better place if we were judged by what we can control rather than what we can’t control. We should only be entitled to what we can earn.
Bob…I LOVE your “real world” comment! I am a big fan of real world experience and feel it doesn’t usually get the credit it deserves!
October 6th, 2009 at 3:57 pm
Thoughts from a non-HR person.
I agree the best person for the job would be the best outcome but that, in my experience, is not our reality.
Even if you could objectively prove that you always hired the clearly superior candidate, if it resulted in the hiring of too many white males (I’ll use them as the basis for this thesis but if egregious enough I suppose any group would do), and if you were to be sued, you would lose. You don’t have to discriminate on purpose. It can just be the total result, with the benefit of hindsight, that can result in the appearance of discriminatory practices.
I have in my own work experience been told “we would like to promote you and feel you are the best for the job but we must promote a minority”. Some would say, and correctly so, that the unfair situation that creates is wrong. Others would say, and correctly so, that there is a historical pattern of an imbalance and actions should be taken to help affect that for the better. Personally, policies such as this can work well when there are ample opportunities to go around. It gets much tougher when times are tight. All in all, I am supportive of such policies. Peoples way of thinking can be changed but with issues such as these it usually takes multiple generations. No easy fix. Hopefully there is an understanding that at some point in time, when the underlying issue is no longer a significant issue, the policies will no longer be needed and can be stopped.
Until that time we have 100,000 trial lawyers out there searching for the next deep pocket to make a case against so HR beware.
October 6th, 2009 at 4:51 pm
Why not just state in the ad, “We are an Equal Opportunity employer”? Or say, “All qualified candidates are encouraged to apply.” Or don’t say anything — let the job description and qualifications speak for themselves.
October 6th, 2009 at 5:05 pm
RandiG — I totally agree with you, but I think some companies either WANT or HAVE to show they are being PROACTIVE in hiring women & minorities, and this is one way they might show that they are (being proactive.)
October 22nd, 2009 at 9:30 am
Well from a non-HR standpoint of view & me being a white man I find that it has become increasingly harder for a guy like myself (white) to find work without being bombarded by EOE statements and requirements that mention “women & minorities are encouraged to apply”. Whenever I see an application that points out that 2nd part blatantly I don’t apply for that job. I know that they will not hire me no matter what my qualifications are.
It seems as if employers are becoming more & more bold in this bad economy to discriminate against white men. I’ve taken snapshots of countless job postings from online job boards & websites that discriminate & abuse the skills & worthiness of a potential employee. In the job ads you shouldn’t really ask for a picture or require that you send over a list of music favorites unless it’s for modeling or if you are going to get into the music industry. These are just a couple of examples that I’ve found to be discriminatory.
1 more part is that I think alot of employers are so cheap that they love to use temp agencies to do the hiring so they don’t have to pay benefits & a decent wage. If anything using temp agencies hurts alot of companies view from the outside & it’s also unfair to the worker who could’ve otherwise applied regularly without going through the temp agency if the company was hiring non-temp people. I think alot of employers have opted for using Craigslist to bypass certain laws including the law that states you can’t discriminate against age, race, national origin, etc. I guess the anonymity of the internet gives employers a feel of power to take their ridiculous job ads even further.