Employers are prohibited from publishing job advertisements indicating any preference or specification for applicants based on protected characteristics such as race, color, religion, sex or national origin, except when a bona fide occupational qualification exists based on religion, sex, or national origin.
Legitimate job qualifications could include a Catholic church looking to hire only Catholic priests or a fashion design house for women’s clothes advertising for female models, explained Kate Bischoff, SHRM-SCP, employment attorney, HR consultant and founder of tHRive Law & Consulting, based in Minneapolis.
The Case Against Discriminatory Ads
The U.S. District Court for the Northern District of Illinois recently decided against a Chicago-based employment agency that unlawfully advertised to supply restaurants with Mexican workers. Judge John Z. Lee ruled that the ads were discriminatory and violated Title VII of the Civil Rights Act of 1964.
The Xing Ying Employment Agency argued its advertising did not discriminate against workers because it didn’t express a preference for any particular type of worker, but promoted workers for hire.
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Xing Ying placed print ads in the Chicago edition of a Chinese-language newspaper from 2011-2015, saying it would provide “lots of Mexicans. Honest and sincere (provide the best Mexicans)” for food preparation and “all trades and professions.” The ads made no mention of any other racial or ethnic groups.
The state alleged that the advertisements “unlawfully expressed a preference or specification for Mexicans or persons of Latino origin” in violation of Title VII, which prohibits employment agencies and employers from publishing job notices or ads “indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin …”
Lee countered Xing Ying’s argument by saying that even if the ads didn’t express a preference for workers based on protected characteristics, they violated the law by indicating a prohibited specification of Mexican workers.
“The court concludes that, in prohibiting employment agencies from publishing advertisements indicating any specification based on national origin, Congress forbade employment agencies from advertising the availability of workers based upon their national origin.”
The same holds true for employers. “This is pretty basic stuff, and hopefully, employers have already gotten the message that they cannot express a preference in job advertising,” Bischoff said. “The EEOC has brought suit on these issues before.”
Takeaway for HR. A bona fide occupational qualification is hard to prove, Bischoff said. “It must be more than just a preference—the job must demand that only the protected class can do it. HR and recruiters should be careful when determining if a bona fide occupational qualification is really required and then advertise accordingly.”
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