How Job Listings Can Discriminate Against Employees

Open positions need to be filled, but companies have a specific candidate they want. While several laws prohibit employers from discriminating against candidates based on protected classes like gender, race, or religion, it doesn’t stop them from trying. 

In particular, job listings can weed out potential applicants who don’t meet certain expectations that a company might be looking for in a new hire. Job listings often help deter candidates that don’t meet a company’s desired position by using discriminatory language in describing the type of employee they want. This is known as coding and deprives potential hires of applying because the ad tells them they won’t qualify. 

Coding Job Ads to Discriminate

While it’s normal for a job listing to share criteria to qualify for an open position, these requirements shouldn’t discriminate against an applicant based on any of the protected classes under Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Act, and other state and federal laws. These classes include:

• Sex
• Age
• Gender identity
• Sexual orientation
• Religion
• Disability
• Pregnancy
• National origin
• Veteran status
• Genetic information

How can an employment ad discriminate against candidates? Coded language acts as a pretext to dissuade some job candidates from ever applying. For example, the term “digital native” alludes to more than just possessing the needed technical skills to qualify. It also refers to the younger generation of candidates who grew up and are more familiar with today’s digital tools and products. This example shows how age discrimination can be wrapped up in engaging words and descriptions. 

If a company ran a job ad that asked for a candidate who “can quickly learn new technologies,” this would not discriminate against older applicants because it focuses on skill, not age. 

How the ADEA Combats Discriminatory Job Listings

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits the use of job postings that discriminates against applicants over the age of 40. However, there are limitations to the scope of this law, including:

• This law doesn’t apply to businesses with less than 20 employees. 
• An age requirement can be used as a hiring criterion if a legitimate reason (bona fide qualification) is to perform the job.
• A company with a seniority system in place for wages and benefits.
• Companies providing annual pensions of $44,000 or more once retired can force higher management positions and executives at age 65 to retire.

Reasons Job Ads Could Discriminate Legally 

With the brief overview of exceptions to the ADEA, there are other reasons that a job ad could legally discriminate. For instance, if a job has significant physical requirements. In addition, an individual with substantial physical challenges may not qualify for the position if the burden of making an accommodation would be unreasonable or impossible. 

Employers will have a more challenging time justifying their preference for a younger-aged candidate in a job posting. But, it might be legal depending on the position being filled and the company that is hiring. 

Another example of discriminatory employment listings involves wages. The current demand for qualified technological professionals has U.S. employers looking for immigrant professionals. Why? Because employees in this category tend to accept lower wages and few if any benefits compared to regular workers who are citizens. This is also an illegal employment practice under several federal laws, including the Equal pay Act. Under this act, companies can’t pay some employees significantly less than their peers despite doing the same work.  

Speak with a Knowledgeable Ohio Discrimination Attorney Today

If you or someone you know have experienced hiring discrimination, whether in an ad, the application process or during an interview, contact James J. Hux, the Owner and Sole Attorney at Hux Law Firm. His practice areas include employment discrimination and general civil litigation throughout Ohio. Trust his expertise to know your Ohio employment rights and protect them to the fullest extent of the law.  

Schedule a free consultation to discuss your hiring matter and determine what next steps are best for your situation.