When posting job ads, what are the biggest mistakes that tend to get employers into legal trouble?
Quick Answer
Major mistakes include expressing a preference related to membership in a protected class, such as gender, age or national origin; not clearly and concisely identifying job requirements; and not disseminating the ads broadly enough.
Legal Perspective
CDF Labor Law LLP
Irvine, California
Most liability comes from unexpected things, like where the ad was placed, the language about your company and the job, and the way hiring managers deal with people who apply, says employment law defense attorney Todd R. Wulffson (twulffson@cdflaborlaw.com) of the firm CDF Labor Law LLP.
To minimize these risks, start with a good job description, reviewed by counsel, HR and hiring managers. State essential job requirements concisely, clearly and in neutral terms. Don’t make promises, and make sure everyone knows that all communication flows through HR or recruiting. Also, post your ad on websites or publications with wide appeal and circulation, and include a link back to the company’s website or a website you control.
Relevant Case Law
Barnes v. Kijakazi
Nakhid v. American Univ.
Bradley v. T-Mobile US, Inc.
Burroughs v. Dep’t of the Army
HR Insight
PCC Medical Holdings
West Palm Beach, Florida
When posting a job ad, employers should never include anything that would violate Title VII protected classes, such as gender, national origin, age, etc., says Director of HR Sue Schwartz.
This would also include restricting any disabilities that are unrelated to the position or accommodation that would be reasonable. It is illegal to discriminate based on any protected status in employment as well as advertising for employment.
Commissioners of Caroline County
Henderson, Maryland
When posting a job ad, some of the biggest mistakes are including disqualifiers that are not actual requirements for the position, says Director of HR Sherry Bratton. It’s important to review job specifications to ensure that the essential requirements are all truly necessary.
Melmark
Andover, Massachusetts
In general, employers should not make any references to protected classes, says Mary Morris, Director, Head of HR. Specifically, job ads should not mention gender, age, sexual orientation, marital or family status, pregnancy, race, ethnicity, national origin, non-job-related disability, or religion.
This includes subtle discriminatory language such as, “Ideal for a recent college graduate” or advertising for a “waitress” rather than “waitstaff” and other statements that practice discrimination in an “under the radar” way. In addition, companies that use social media to promote their jobs should be careful, to be honest and get permission to use licensed content.
The Cost of Noncompliance
DOJ says recruiting, job ad mistakes violate INA: Apple pays $25M
Who was involved: Apple Inc., a communications equipment company, and an undisclosed number of applicants.
What happened: According to a DOJ investigation, Apple engaged in discriminatory hiring practices for some jobs by illegally favoring immigrant workers over U.S. citizens and green card holders. At issue here, Apple had job openings that were eligible through the PERM program, a federal program that allows employers to sponsor immigrant workers for green cards.
A DOJ investigation determined Apple:
- Failed to recruit U.S. citizens or green card holders for the positions it sought to fill through the PERM program
- Failed to advertise the positions it sought to fill through the PERM program on its external job website – even though its standard practice was to post other positions on this website, and
- Required all PERM position applicants to mail paper applications, even though the company allowed electronic applications for other positions.
In the DOJ’s view, the alleged conduct amounted to violations of the Immigration and Nationality Act (INA) – a federal law that bars discrimination on the basis of citizenship.
Result: Apple agreed to pay $25 million to settle the dispute, the largest award the DOJ has recovered under the anti-discrimination provision of INA. The payout will be distributed as follows:
Under the agreement, Apple must also:
- Ensure its recruitment for PERM positions more closely matches its standard recruitment practices
- Provide employee training on the INA’s anti-discrimination requirements, and
- Submit to compliance monitoring for three years.
Info: DOJ Secures $25 Million Landmark Agreement with Apple to Resolve Employment Discrimination Allegations Based on Citizenship Status, 11/9/23.
‘Historically male-dominated’ golf club pays $100K civil penalty for word-of-mouth referrals
Who was involved: Pine Valley Golf Club, a recreational facility, and an undisclosed number of women in New Jersey.
What happened: According to an investigation by the state’s Division on Civil Rights (DCR), the “historically male-dominated” Pine Valley Golf Club discriminated against women on the basis of gender. Among other things, the club allegedly relied on word-of-mouth referrals from its mostly male staff which resulted in the club being staffed almost exclusively by men. The club also engaged in gender discrimination that was not tied to employment – such as not allowing women to become members of the club.
Result: The DCR issued a $100,000 civil penalty. Under the settlement, the club has also agreed to:
- Discontinue its word-of-mouth referral program as its primary method of recruitment.
- Publicly post job openings “such that they are equally accessible to people of all genders.”
- Advertise at least 75% of its vacant employment opportunities by posting job ads on at least two major online job posting websites.
- Donate an additional $100,000 to establish scholarships for female golfers.
- Submit annual compliance reports to the DCR.
Info: AG Announces Settlement With Pine Valley Golf Club Over Allegations of Gender-Based Discrimination, 5/10/23.
Company assessed $29K penalty for excluding applicants on basis of citizenship
Who was involved: American Express Company, a financial services corporation, and an undisclosed number of job applicants who were excluded from applying.
What happened: According to an investigation by the DOJ’s Immigrant and Employee Rights Section (IER), the company engaged in discrimination by imposing unlawful citizenship status restrictions in seven job ads it posted to a college’s career services web-based platform. The ads excluded some students, including lawful permanent residents, from consideration.
Result: The company was ordered to pay a $29,008 civil penalty. Under a settlement agreement, it also agreed not to:
- Discriminate on the basis of citizenship, immigration or national origin during the recruiting and hiring process.
- Reference any specific citizenship or immigration status or any visa category in any job advertisements it places or permits to be published by a third party on its behalf.
- Retaliate against any employees for their participation in the federal investigation.
The company also agreed to require employees involved in advertising for open positions, recruiting and hiring to participate in IER’s live training presentations.
Info: American Express settlement, 6/17/22.
Key Takeaways
- Do not target candidates based on age, gender or other characteristic protected by law.
- Focus the language of the postings on the skills and credentials needed for the position.
- Identify the job’s essential functions in clear and neutral terms.
- Do not include “requirements” unrelated to legitimate business needs or are not needed to do the job.
- Review job-posting policies regularly to make sure they comply with the law.
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