KMK Law Management Rights Blog

I ran across an interesting debate in a recent issue of the USA Today over the issue of job postings.  Apparently, some employers have been posting jobs with a statement that the unemployed need not apply.  The USA Today editors argued for (“Let business hire whoever it wants”) and against (“Telling the jobless not to apply is plain dopey”) the practice.  Fortunately, the argument against the practice notes the potential for disparate impact lawsuits in excluding the unemployed from consideration for open positions.  Earlier this year, the EEOC held hearings on this issue and the recently introduced Fair Employment Act of 2011 (H.R. 1113) would amend Title VII to add “unemployment status” to the list of protected classes.  On the state level, New Jersey hastily passed legislation prohibiting statements in job ads that unemployed persons will not be considered.  New York has pending legislation that would make it illegal for employers to disqualify out-of-work job-seekers solely because they are unemployed.  It seems likely that other states will follow suit. 

I have run across job posting issues from time to time in practice and often the employer is surprised by these claims.  One reason is that job postings are seldom reviewed by an attorney and often are not even reviewed by a human resources professional.  In many cases, hiring managers write postings without having been trained on the legal issues involved.  Even worse, many job postings are created by outside recruiting agencies.  This means that the employer, who is exposed to liability, may have never reviewed the posting. 

Some may scoff at the notion that employers would be so careless with their job postings.  This week, I went to my local Craigslist employment section and browsed the job postings.  Here are excerpts from some postings that I located (with identifying information removed):

• We are currently looking for a female bartender for a club located in the ________ area. Experience is preferred but we will train the right person. If your interested, please forward photos and a resume to _______.
• We are currently looking for people for a fast paced position we have in the ___________ area.  No felonies or misdemeanors involving theft, drugs, violence, or dishonesty will be considered for this position. 
• [R]eliability a must as is good transportation. That does NOT mean your girl friend!! I wil [sic] not listen to the plethra [sic] of excuses. I expect one to show up for work each day clear headed and ready to work a 6-8 hour day. hopefully not to [sic] much to ask.
• Must be dependable and willing to work hard. In your response, please tell me your age, where you live and if you have transportation.
• Looking for an energetic, friendly, customer service oriented co manager for a specialty store in mall. Must be goal driven and likes to "win".

While many of the postings I looked at had nothing wrong with them, it took very little time to locate the examples above, all of which could use some editing.  If your company does not regularly review job postings for compliance with applicable laws, you may find yourself unpleasantly surprised when the EEOC or a state agency comes calling.