Overview: In drafting job advertisements, employers should not do anything to discourage members of protected groups from applying for openings.
This means job ads should steer clear of language indicating a preference for applicants based on their age, gender, race, religion and citizenship except for the rare instances in which such characteristics are a bona fide occupational qualification (BFOQ).
Advertisements posted on the Internet, in trade publications or other media outlets also should never discourage qualified applicants from applying based on disability, marital or military status as well as political or union affiliation.
Along these lines, it is important to focus on listing the skills and credentials that are truly essential. For instance, "college or graduate degree required" should not be included in a job notice if such credentials are not needed to perform the job well.
It also is a good idea for employers to state their commitment in job advertisements to a diverse workforce. As part of that commitment, they should make clear how candidates with visual, hearing or other disabilities can apply.
Trends: In 2011, New Jersey became the first state to prohibit employers from discriminating against the unemployed in print and internet job advertisements. Oregon and the District of Columbia have since passed similar laws and other states have legislation in the works.
The EEOC has questioned the use of "current employment as a sign of quality performance," and has suggested that the practice of screening out unemployed applicants may have a disparate impact on women, certain racial and ethnic minorities, and people with disabilities.
Author: David B. Weisenfeld, JD, Legal Editor
Updated to reflect forthcoming Waterloo ban the box ordinance.
Updated to include amendments to the MHRA, effective September 19, 2019.
Updated to include 'ban the box' law for larger employers, effective September 1, 2019.
Updated to reflect law regarding salary history inquiries and pay scale disclosure, effective July 28, 2019.
Updated to include amendment prohibiting discrimination based on reproductive health decisions, effective July 2, 2019.
Updated to reflect law regarding inquiries with respect to sealed or expunged criminal records, effective July 1, 2019.
Updated to reflect forthcoming law regarding pregnancy and lactation accommodations.
Updated to include Westchester County 'ban the box' law, effective March 4, 2019.
Updated to reflect regulations expanding national origin protections, effective July 1, 2018.
HR considerations about writing legally compliant job advertisements or notices.