How To Ensure Your Hiring Practices Meet Anti-Discrimination Requirements

Created By: Rosemarie Harvey
December 6, 2023

It’s time to hire. Your organization is growing, or you need to replace staff in a vacated position. You have all that you need, you think, to create a job description and advertise the position. However, before posting that job publicly, have you carefully reviewed it to ensure it entails all the qualifications you are seeking, the responsibilities of the role, what’s in it for the potential candidates, and more importantly, that it does not contain discriminatory language that could expose your organization to risks?

The U.S. Department of Justice frequently reports news on civil penalties and agreements reached with organizations due to their violation of anti-discrimination laws and guidelines in their job postings. Advertising employment positions that could be challenged as discriminatory could expose an organization to discrimination allegations, penalties, and reputational damages, among other setbacks. Therefore, it is essential for an employer to ensure a non-discriminatory recruiting and hiring process by becoming familiar with the laws that prohibit discrimination and recognizing discriminatory language, gaining awareness of the consequences of discrimination in job postings, and knowing the actions to take to ensure legal compliance.

Understanding Anti-Discrimination Laws in Hiring Practices

To help ensure that your job postings do not intentionally or unintentionally display discriminatory language, it is a good idea to understand Federal laws that prohibit job discrimination. According to the U.S. Equal Employment Opportunity Commission (EEOC), these laws are as follows:

• Title VII of the Civil Rights Act of 1964 (Title VII): Title VII protects employees and job applicants from employment discrimination based on race, color, religion, sex, or national origin. Title VII normally applies to employers, including nonprofit employers, with 15 or more employees.
• Equal Pay Act of 1963 (EPA): The EPA protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination in the payment of wages or benefits.
• Age Discrimination in Employment Act of 1967 (ADEA): The ADEA protects individuals who are 40 years of age or older from age-based employment discrimination.
• Title I and Title V of the Americans with Disabilities Act of 1990 (ADA): Title I and Title V of the ADA prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments.
• Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA): Title II of GINA prohibits employment discrimination based on genetic information about an applicant, employee, or former employee.
• Civil Rights Act of 1991: The Civil Rights Act of 1991, among other things, provides monetary damages in cases of intentional employment discrimination.

Referring to these laws will help prevent language that directly or indirectly discriminates against individuals based on their race, color, religion, sex, national origin, age, disability, or other protected characteristics.

Anti-Discriminatory Practices for Job Descriptions

Keeping these employment laws and guidelines in mind informs the decision on the language you’ll include in, or exclude from, your job postings. Here are a few considerations as you write your job descriptions:

• Phrases like “United States citizens only” will likely exclude other job seekers who are otherwise qualified and thus should be avoided. Further, if an employer’s recruitment strategy involves PERM Recruitment (recruitment for positions that fall under the permanent labor certification program), they must adhere to the Immigration Reform and Control Act of 1986.
• Include the salary range for the job and/or your organization’s compensation philosophy to show your commitment to pay transparency. Some states, including California, Connecticut, Colorado, Maryland, Nevada, New York, Rhode Island, and Washington have pay transparency laws that require that the salary range either be featured in job postings, be shared upon a candidate’s request, or be disclosed at a certain stage in the process, even if the candidate does not request it.
• Avoid any allusion to age in a job posting. For example, “recent college graduates” will also exclude job seekers who do not fall into that category and could be qualified for the job.
• Limit the use of images and videos if they do not showcase inclusiveness and represent diversity.
• State in your job posting or on your careers page whether reasonable accommodations will be provided for persons protected under the ADA.
• Add an Equal Employment Opportunity (EEO) statement to inform job seekers of your dedication to fair recruiting and hiring practices.

Tips to Ensure Equitable and Compliant Hiring Practices

The consequences stemming from the use of discriminatory language in job postings can impede an organization financially and reputationally and can have social and economic consequences, some of which include investigations, settlement agreements, and civil penalties. These setbacks can negatively impact your ability to grow your organization and contribute to the economic well-being of the community in which you operate.  Further, third-party job boards may also be at risk and are responsible for the job postings placed on their sites. To help ensure legal compliance in job postings, there are a few important actions to take to limit the risk to your organization:

• Stay abreast of employment laws, including federal, state, and local anti-discrimination laws and regulations. At the Federal level, connect with the U.S. Equal Employment Opportunity Commission and the U.S. Department of Labor by subscribing to their newsletters and following them on social media. At the state and local level, remain connected with your state’s labor division.
• Subscribe to vetted and reliable newsletters, for example, Harvard Business Review, a nonprofit organization that provides insights and best practices to help lead organizations.
• Rely on your internal recruitment and HR professionals to provide information and clarification on any employment laws and guidelines.
• Consult with your legal counsel for advice to ensure that your job descriptions are compliant with the various employment laws and guidelines.
• Have your job posting developed or reviewed by a human resources expert before posting it.

Performing these necessary steps in the early stages of the recruiting and hiring process will mitigate any backlash once the position is posted publicly on the internet. Remember, anything online can be cached, so posting the correct and compliant information from the get-go is crucial!

In sum, when preparing job postings, it is paramount to keep the above employment laws and equitable practices in mind. While it is important to find the right talent, it is equally as important to protect your organization from potential discriminatory risks.

Orr Group’s Talent team can help you craft inclusive job descriptions that attract top talent while staying compliant with employment laws. Contact us today for recruitment services, including tailored job descriptions that are aligned with regulations.

Rosemarie Harvey is a Director on the Talent team at Orr Group. Rosemarie brings over 15 years of experience working in recruitment across sectors and industries and has a track record of developing recruitment and sourcing strategies that enable recruiters and organizations to grow while adhering to employment laws and guidelines.