Job Advertisement Legal and Discrimination Requirements
Sometimes, when you read a job posting, you wonder if an employer can really exclude certain types of applicants from the candidate pool.
What can employers list in a job ad, and what shouldn't be listed? What are the rules, and when do the rules not apply?
Employers are prohibited from discriminating against job candidates by federal, state, and local laws.
In general, organizations should not include any reference to gender, marital or parental status, unemployment status, race, ethnicity, age, non-job-related disability, national origin, or religion in job advertisements.
Federal Law and Discrimination Issues
The U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency charged with enforcing laws prohibiting job discrimination. When advertising open positions, It is illegal for an employer to show a preference for or discourage someone from applying for a job because of their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information.
State and Local Laws
Most states have discrimination laws related to employment that are similar to federal law. The legislation provides protection against discrimination based on various factors, such as race, gender, age, marital status, national origin, religion, or disability.
Additional Discrimination Issues
In addition to the factors mentioned above, over twenty U.S. states and Washington, D.C., prohibit discrimination based on sexual orientation and gender identity.
There are also local nondiscrimination ordinances that provide employment protection for job seekers and employees.
Job postings should not include information about unemployment or request applications only from people who are working. For example, New York City has legislation banning discrimination against the unemployed in addition to many other protections for workers.
Exceptions to Discrimination Laws
There are exceptions to these laws, such as cases in which physical requirements would make it impossible, even with accommodations, for a physically challenged person to carry out the job duties.
Applicants for employment also often wonder if it’s legal when an employer specifies that they want candidates of a certain age in a job posting. The answer is that it depends on the organization and the job.
Bona Fide Occupational Qualifications (BFOQ)
An exception to equal opportunity law permits employers to discriminate against applicants and employees "on the basis of [their] religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”
To be eligible to use the BFOQ exception, an organization must prove that no member of the group they are discriminating against could perform the job.
For example, there is a mandatory retirement age of 65 for airline pilots, so it would be a BFOQ to advertise for candidates under the age limit.
When an Employer Can List Religion as a Job Qualification
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against job applicants and employees based on religion. The provisions of this law govern all aspects of the recruiting, interviewing, and hiring process.
The law also prohibits employers from discriminating against employees, harassing workers, or limiting their advancement based on religion once they are on the job.
However, religious organizations are exempt from certain aspects of Title VII. They can give preference to members of their own religion in the hiring process and can state this preference in a job advertisement.
Guidelines for Religious Hiring Exemptions
The Equal Employment Opportunity Commission (EEOC) defines religious organizations as institutions whose "purpose and character are primarily religious."
EEOC guidelines for interpreting this law cite factors such as whether its articles of incorporation state a religious purpose; whether its day-to-day operations are religious; whether it is not-for-profit; and whether it is affiliated with, or supported by, a church or other religious organization as indicators of whether an organization should be considered a religious entity.
Jobs Exempt from Hiring Requirements
Even jobs that do not include religious activities may be covered by this exception. For example, a church could hire only employees who are members of its religion and reject candidates of a different religious persuasion.
The U.S. Supreme Court has interpreted the religious exemption to allow religious employers to use religious criteria in choosing all personnel. Religious organizations are still prohibited from discriminating against job candidates based on age, race, gender, national origin, or disability.
Job Advertisement Discrimination Examples
It is rare for an employer to blatantly violate these laws by saying something like, "Only married men need apply."
More common violations involve the implication (perhaps inadvertent) that a certain type of protected class of person would not receive consideration, e.g., "Looking for candidates with strong family orientation," or "Seeking applicants with a youthful perspective on social media."
In some cases, an organization may not list requirements but may post a mission statement or goals that indicate that they are seeking a certain type of applicant:
- Mission: To know Christ Jesus by living and then communicating the fullness of life within the family of God, the Church.
- We are seeking married couples to work in our homes.
Employers Promoting Diversity
In other cases, employers promote diversity:
- All interested individuals, including people of color, women, persons with disabilities, and persons who are lesbian, gay, bisexual, transgender, or intersex, are particularly urged to apply.
- People of all genders and members of all racial and ethnic groups are encouraged to apply.
Know Your Rights. There is federal, state, and local legislation that provides protection against discrimination.
Legal Exceptions. Federal law provides some exemptions for employers based on occupational qualifications and religion.
Constitutional Exemptions. Religious organizations are exempt from hiring discrimination based on religion.
EEOC. "Prohibited Employment Policies/Practices. Job Advertisements." Accessed June 9, 2020.
National Conference of State Legislatures. "Discrimination and Harassment in the Workplace." Accessed June 9, 2020.
Movement Advancement Project. "Nondiscrimination Laws." Accessed June 9, 2020.
Movement Advancement Project. "Local Nondiscrimination Ordinances." Accessed June 9, 2020.
NYC.gov. "Human Rights." Accessed June 9, 2020.
Cornell Law School. "Bona Fide Occupational Qualification (BFOQ). Accessed June 10, 2020.
FindLaw. "Bona Fide Occupational Qualification." Accessed June 9 2020.
Federal Register. "Part 121 Pilot Age Limit." Accessed June 9, 2020.
EEOC. "Title VII of the Civil Rights Act of 1964." Accessed June 9, 2020.
EEOC. "Questions and Answers: Religious Discrimination in the Workplace." Accessed June 9, 2020.
Berkley Center for Religion, Peace & World Affairs. "Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos." Accessed June 9, 2020.
HigherEdJobs. "Discriminatory Job Postings? What's the Deal?" Accessed June 9, 2020.