Perception is Reality – Avoiding the Appearance of Discrimination in Want Ads
What’s in a want ad? In the law, perception is reality. Discrimination suits are often based on circumstantial evidence. One would be hard pressed to find a discrimination suit that contains a “smoking gun.” More often than not, employers terminate employees because they are bad at their jobs. Nonetheless, you should avoid any appearance of discrimination and minimize the risk of receiving a demand letter or lawsuit. This begins with the manner in which you seek employees.
The ultimate goal of an ad is to get the right candidate to apply. Don’t be afraid to make ads catchy or edgy. Be certain, however, to use “protected category neutral” language. Common mistakes employers make are that they use language that indicates a preference for a particular gender or age range.
First, use gender neutral language in your ad. Avoid, “Restaurant seeking waitresses and hostesses.” This implicates that only female applicants are sought and are ultimately who the company wants to hire. Try, “Restaurant seeking wait staff and host staff.” Also, avoid personal pronouns. Use words like “candidate” or “applicant” instead of “he” or “she.”
Second, be mindful of age bias. Age is a protected category for individuals over 40. Thus, appearing to have a preference for younger employees could cause a problem. Avoid, “Seeking recent college graduate.” This indicates that the company is seeking to employ someone who is 21-22 years old, and not someone over 40 years of age. Instead try, “Seeking candidates with bachelor’s degree for entry level position.”
Third, be mindful of combining protected categories. Avoid using language like, “Seeking articulate young lady for receptionist position at a growing construction company.” This language actually poses trouble on multiple fronts. It identifies a preferred age and sex. And, “articulate” can be interpreted to mean, “accent-free” thereby indicating a preference for a particular national origin or race. Instead try, “Seeking receptionist with excellent people and telephone communication skills.”
After the description of the candidate, provide the description of your company and the remaining job requirements. This will help obtain resumes from individuals who are truly interested and qualified, and avoid pitfalls that could lead to trouble down the road.
Stephen J. Quezada