We’ve heard a lot about companies getting in trouble for using language in job ads that isn’t inclusive. How can we make sure our postings aren’t discriminatory?
Quick Answer
Focus on the skills and credentials required for the job rather than the individual characteristics that the applicant should possess. Avoid language that would screen out or discourage applicants based on their membership in a protected class of individuals.
Legal Perspective
Foster Swift
Southfield, Michigan
As a general rule, employers should avoid language that would discourage someone from applying to a job because of a protected class, says employment law attorney Michael Blum of the firm Foster Swift Collins & Smith PC.
Suggesting a preference for a certain race, age or gender can get you in trouble. For example, avoid phrases like “young and energetic,” “new college grads” or “able-bodied workers.”
Another thing to be careful about is word-of-mouth recruiting. The EEOC warns employers that asking a non-diverse workforce to recruit new hires can be discriminatory since that will often result in a pattern of non-diverse hires. It’s a good idea to use your current employees’ connections only if you have a diverse bunch.
Relevant Case Law
New Jersey Department of Labor and Workforce Development v. Crest Ultrasonics
New York Times Co. v. New York Comm’n on Human Rights
Passaic Daily News v. Blair
HR Insight
JustAnswer
San Francisco, California
Here are some tips, provided by Kimberly Nerpouni, SPHR, VP of Talent Acquisition and People Operations, to help ensure job ads are on the up and up:
- If your company has diversity and inclusion initiatives and/or commitment, consider mentioning them in the job posting. This can signal to candidates that your organization values diversity.
- Avoid using gendered language and choose gender-neutral terms. For example, use “salesperson” instead of “salesman” or “waitstaff” instead of “waitress/waiter.”
- Clearly outline the skills, qualifications, and experience required for the job. Focus on what is necessary to perform the job successfully rather than personal characteristics.
- Refrain from using terms that may imply a preference for a specific age group. For example, use “entry-level” or “experienced” instead of specifying a particular number of years of experience.
- Evaluate whether certain requirements are truly necessary for the role, including specific educational requirements. Avoid including qualifications that may disproportionately exclude certain groups of candidates. If not essential for the role, consider if alternative qualifications or experience may be acceptable.
- Use gender-neutral pronouns like “they” or “their” instead of assuming gender. For example, “The ideal candidate will demonstrate their ability to…”
- Stay away from phrases that could be interpreted as discriminatory or exclusionary. For instance, avoid terms like “young and dynamic” or “recent graduates preferred.”
- Review your job descriptions for unconscious bias. Consider using tools that analyze language for bias or have diverse teams provide input on job postings.
- Include an equal opportunity statement in your job postings to convey your commitment to a diverse and inclusive workplace. For example, “We are an equal opportunity employer and encourage candidates from all backgrounds to apply.”
- Test your job postings with a diverse group of individuals to gather feedback on language and content. This can help identify any unintentional biases.
Creative Testing Solutions
Flagstaff, Arizona
A job posting shouldn’t focus on a particular person or type of person but rather should focus on what is required for that job.
Accurate representation of a job, instead of the type of person that could do that job, is far more objective when recruiting.
Mackenzie
Portland, Oregon
- Don’t use pronouns or other language that would imply this.
- Don’t mention age or physical condition (unless truly a need for key duties of the position, such as the ability to lift a certain amount of weight).
- Provide ways for applicants to apply with different access to technology.
- Consider what qualifications are truly needed for the position.
- Be sure to state that you’re an Equal Opportunity Employer.
The Cost of Noncompliance
DOJ: Company must pay $191K penalty for hiring bias
Who was involved: Honeywell International, Inc, a multinational conglomerate corporation headquartered in Charlotte, North Carolina, and an undisclosed number of job applicants.
What happened: According to an investigation by the DOJ’s Immigrant and Employee Rights Section, the company discriminated against potential job applicants by posting 43 job ads on a college’s recruitment platform that only permitted U.S. citizens to apply for internships. The investigation found the job ads deterred qualified students from applying for internships because of their citizenship status, and in many cases, the citizenship status restrictions also blocked students from applying or even meeting with company recruiters.
Result: The company had to pay a $191,995 civil penalty. Under a consent decree with the DOJ, it also had to:
- Stop engaging in discrimination based on citizenship.
- Remove references to citizenship status, immigration status or visa categories from job ads.
- Ensure that all employees with any role in the recruiting process, including writing job ads and screening applicants, receive training to comply with the law.
- Review employment policies and revise them to prohibit discrimination in recruiting, hiring and termination processes, as necessary.
Info: Honeywell International settlement, 5/23/23.
$1M mistake: Job ads advertised ‘a Spanish-language preference’
Who was involved: Lawler Foods, Inc. and Lawler Foods, a bakery in Houston, and a class of African-American and non-Hispanic applicants.
What happened: According to the EEOC, the bakery discriminated against three applicants and a class of African-American and non-Hispanic applicants by refusing to hire them on the basis of their race and national origin. Among other things, the bakery allegedly used language in job ads “advertising a Spanish-language preference” without providing any business justification. The EEOC said that had “an adverse disparate impact on black and other non-Hispanic applicants” that amounted to a violation of Title VII.
Result: A four-year consent decree that resolved the suit enjoined the bakery from engaging in race or national origin discrimination or retaliation in the future and also required the bakery to:
- Pay $1,042,000 that was deposited into a monetary claims fund.
- Seek to recruit and hire Black and other non-Hispanic job applicants for its production jobs.
- Conduct an assessment of its hiring to ensure non-discrimination and compliance with the terms of the consent decree.
- Provide Title VII training for all employees.
- Designate an internal leader to prioritize compliance with the requirements of the consent decree.
Info: Lawler Foods Pays More Than $1M to Settle Race, National Origin Discrimination Suit, 4/26/16.
Key Takeaways
- Include a reasonable accommodation statement.
- Emphasize the skills and credentials that are required for the position.
- Avoid language that suggests a preference for a particular race, age, or gender.
- Avoid language that excludes applicants based on their membership in any other protected class of individuals.
- Remember that a statement can be evidence of illegal bias even if it is not blatantly discriminatory. For example, “seeking recent college grads” can be evidence of age bias.
- Do not post ads only on sites that screen out applicants based on their religion or membership in any other protected class, such as posting an ad only on a Christian website.