Recruiting No-Nos

Without knowing it, you may be discriminating on the basis of race, religion, disabilities or other factors.

October 15, 1998
On September 9, Mitsubishi agreed to pay $3 million to settle a class action lawsuit involving 87 disabled people. According to the U.S. Equal Employment Opportunity Commission, Mitsubishi rejected the 87 candidates after pre-employment medical exams revealed disabilities ranging from hearing loss to diabetes. While these exams are normally legal, the 1992 Americans with Disabilities Act requires employers to make a reasonable effort to accommodate disabled workers.

Last month, the EEOC also filed a class action lawsuit against J.Crew Group, Inc. and one of its subsidiaries for allegedly discriminating against men. This complaint was initiated on behalf of George Mandell of West Haven, CT. According to the lawsuit, Mr. Mandell was told he would not be considered for a customer service job because he is male. This lawsuit alleges a "pattern and practice" of refusing to hire men for management and customer service positions.

While both of these lawsuits involve incidents that occurred during the interview stage of the hiring process, the "pattern and practice" that the lawsuits allege is directly relevant to recruitment advertising. Improper language in a job posting can often contribute to a case as a form of "prima facie" (implied or giving the appearance of) guilt. While an advertisement might not expressly discriminate against certain applicants, it might give that appearance based on interpretation and can serve as evidence in a discrimination lawsuit.

Here's what you can do to avoid costly mistakes:

  • Avoid any references to age, even those that sound benign. How often have you seen an ad describe the ideal candidate as "youthful and energetic"? While one might argue that a person of any age can be described that way, it can be easily be interpreted differently.
  • Be sure not to use gender-specific language. Obviously, you want to avoid phrases like "the right man for the job", but even commonly used words like "repairman" can cause problems. Also, avoid more subtle references to gender, such as in appearance and apparel. ("This job requires that you provide your own tuxedo", etc.)
  • When writing a job description, avoid phrases that preclude people with disabilities. For example, you should never say a job "requires long hours on your feet." You may not have intended to discriminate against a candidate in a wheelchair, but it still gives that appearance.

Most recruiters know that it is illegal to reject a candidate based on age, gender, and disabilities. In most cases, it is also illegal to discriminate on the basis on nationality. Many business owners feel that when staffing positions that deal with the public, the ideal candidate should be someone the customer can relate to on a personal level. For this reason, if the job is a salesperson in a predominately Chinese community, the employer might prefer Asian candidates and indicate that in advertising. While there are instances when this can be legally defended as a "bona-fide occupational qualification," this is a quick route to trouble.

Another area that can cause problems is religious discrimination. Some employers consider a "Christian and pro-family environment" to be an attraction and want to advertise this as an advantage over other companies. This could cause problems if Jewish or Muslim applicants feels they were denied employment on that basis.

One easy way to convey a fair and equitable company image is to include equal employment notices on all of your job ads. This is as simple as adding the customary shorthand designation of "EEO/M,F,H,V" at the end of your company biography. One benefit to Internet advertising is you are normally not limited by space. Thus, it wouldn't hurt to include sentence or two detailing your company's equal employment policies.

Discrimination is fairly difficult to conclusively prove, but the axiom of "innocent until proven guilty" is not applicable in civil court. If you appear guilty, you will likely be found liable. Most recruiters have a clearly stated company policy against discrimination and harassment and would never consider race, gender, disability, religion or national origin in their hiring decisions. Even so, it is important to be careful of what words you choose when advertising to avoid giving the wrong impression.

SOURCE: Best Recruiter News, September 21, 1998.