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Lesson 03: Legal Aspects of Recruiting, Hiring, and Promotion

L03 Want Ads and Job Announcements

When a job is available, its availability, description and requirements must be made known to prospective applicants. Previously, employers were heavily reliant on newspapers, bulletin boards and trade publications to advertise a position. Increasingly, the Internet is used. Sites such as LinkedIn, ZipRecruiter, and CareerBuilder cannibalize the offerings from other sites and even reverse the process by targeting people who might be qualified or interested.

The federal government uses USAJOBS, while states and municipalities have their own sites. The federal government process of opening a position to a wider recruitment pool than the department in which it exists reinforces the value of using multiple sources. Ads limited to a bulletin board in a plant where most of the workers are of one ethnicity will replicate that search for polar bears in Aruba.

Example:  Gaines et al. v. Boston Herald, 998 F. Supp. 91 (D. Mass 1998) involved filling positions in the pressroom, which was then a desirable position, to notice among those already working in the position. Without notice to others working at the paper or the public, it is a suspect practice.

Decades ago, positions in auto plants and at utility companies were made known to only those already working there – which resulted in multiple generations of employees from the same families. That equates to being of the same ethnicity. Such practices are exclusionary.

EEOC Job Posting Requirements

EEOC requirements concerning job postings include:

It shall be an unlawful practice for an employer . . . to print or publish or cause to be printed any notice or advertisement related to employment . . . indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin. (42 U.S.C.S. 2000e – 3(b) (2017)

The U.S. is robust in its protections based on protected classes. Here, want ads must be neutral. Gender-based words such as waitress or seamstress should not be used. A requirement for “young go-getters” would not pass review by the EEOC. “Recent college grad” can be problematical, though some positions target those groups – such as associates at law firms. Further, some “recent college grads” are 40+. Moreover, the Age Discrimination in Employment Act does not permit disparate impact claims by applicants. (Villareal v. R.J. Reynolds Tobacco, 839 F.3d 958 (11th Cir. 2016), cert. denied, 2017 U.S. LEXIS 4193.)

International Job Posting Practices

In the EU, specifications concerning gender or age preference sometimes appear in ads and are legal. Also, there are mandatory retirement ages in most EU countries. In Hong Kong China, an ad indicating that applicants must be Chinese, female, and 21-28 are acceptable.

The most important thing is that wording of ads must be neutral with no indication of preference based on age, gender, ethnicity, citizenship or national origin.

Next, let’s look at employment agencies as another recruitment method.


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