Seek "Recent Graduates" for a Job Opening, Risk a Lawsuit

23 February 2015 Labor & Employment Law Perspectives Blog

Employer job advertisements are, once again, coming under scrutiny. A few weeks ago, the U.S. Equal Employment Opportunity Commission (EEOC) made headlines when it filed a lawsuit against a restaurant chain over its job posting in which “only females would be considered” for summer positions in a Utah resort town. Last year, Facebook settled a lawsuit with a California agency over an advertisement that allegedly discriminated on the basis of age when it said, “Class of 2007 or 2008 preferred.” These are only a couple recent examples of a stepped-up focus by government agencies in combating perceived discrimination in hiring.

According to discrimination enforcement data for fiscal year 2014 that the EEOC released earlier this month, the number of charges filed by employees and applicants with the agency alleging discriminatory advertising jumped from 49 to 121 from FY 2013 to FY 2014. Of the 121 charges filed with the EEOC in FY 2014, the vast majority of them (111) alleged that the advertisement discriminated against older job applicants. Employers are not off the hook just because they avoid phrases like “must be under 30” in their job advertisements. The EEOC has taken an aggressive position, concluding that ads seeking “recent college graduates” are discriminatory because they discourage older workers from applying.

The Age Discrimination in Employment Act (ADEA) makes it illegal for employers to discriminate against workers age 40 and over in any employment decisions, including hiring, firing, wages, benefits, and all other terms and conditions of employment. Of course, employers can take age into account where it is a requirement for the job, such as for airline pilots who must retire by age 65 under federal law. But this is a narrow exception to the broad rule against considering age when hiring. A job requirement that excludes older workers is only acceptable where it qualifies as a “bona fide occupational qualification,” meaning that the age limitation is necessary for performing the job. This is a difficult standard to meet, and agencies tasked with enforcing anti-discrimination laws will closely scrutinize claims that a job is too strenuous or demanding for older workers.

So, to avoid getting into trouble with the EEOC or a state agency, it is crucial that employers refrain from using any language in a job advertisement that could possibly be viewed as excluding older applicants or deterring people age 40 or older from applying. All job postings should also refrain from using phrases that could be perceived as excluding applicants on the basis of race, national origin, sex, pregnancy, or disability. Here are some tips on how to ensure that your job advertisements do not run afoul of the ADEA:

  • Do not reference age at all in a job application, unless age is a bona fide requirement for the job.
  • Do not ask on an application about the prospective worker’s date of birth, graduation year, or any other information that would reveal an applicant’s age. Any information like this needed later on, for a background check, for example, should be obtained after a hiring decision has been made.
  • For entry level positions, avoid using terms like “young,” “college student,” “recent college graduate,” or similar phrases that will more frequently describe younger applicants. Instead, describe such jobs as “entry level” or as not requiring prior experience.

Employers can avoid needless liability over their job advertisements by reviewing how they are worded to ensure that no one can interpret them as discriminating against older workers or any other protected group.

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