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Jeff On Call: What Internet Job Postings Are Illegal?

Apr 15, 2009

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Q: What Internet job postings are illegal?

Internet recruiting has become a cyberspace minefield for recruiters. Official surfers are monitoring your interstate commerce.

Recruiters recently received letters by Certified Mail from the “Deputy Special Counsel and Senior Trial Attorney” of the U.S. Department of Justice in Washington D.C., informing them that the DOJ had opened an investigation into their “pattern or practice of discrimination” against non-U.S. citizens in job postings.

With all the talk in Washington about healthcare, you’d think they would at least include a nitroglycerine tablet for your heart attack when you opened the Certified Mail envelope.

There was even an assigned “Charge Number” to the investigation, the citation of federal law, and a series of questions that required implicating clients in your answers. As our Fordyce founding father Paul Hawkinson would say, “Hooboy!”

Most of the mistakes involve citizenship, age-based job titles, gender-based job titles, or dress codes.

The appearance of discrimination has caused major problems for recruiters.

Surprisingly, the vast majority of fines and other punishment have been against recruiters who honestly thought that their good intentions, and the fact that they weren’t the employer, were defenses.

If you’ve been in the business for a while, you may still have my Acting Affirmatively audio package. It listed the items you can’t include at the recruiting stage. They made the ones you can include easier to figure out, so I’ve updated them.

Here are examples of prohibited job requirements:

  • Citizenship. Asking for submission of a birth certificate or other proof of U.S. citizenship.
  • Sex and Marital Status. “Male,” “female,” “must wear dress,” “three-man office,” or “draftsman.”
  • Racial Characteristics. “Middle-Eastern,” “Asian,” or “Black preferred.”
  • National Origin. “American-born,” “Native-American,” or “Hispanic.”
  • Religion. “Christian values,” “optional prayer services,” or anything else that indicates denomination or custom.
  • Age. “21 to 30,” “under 40,” “recent college grad,” “young office,” “career-minded person,” or “recent retiree” (surprise!).
  • Physical Condition. “Good health” or “no handicapped access.”
  • Geographic Areas. “Chicagoland resident” or “suburban commuter.”

Note that we are only covering Internet job postings. Once the candidate has been referred and interviewed by the employer, it can ask additional questions about citizenship, require proof of age, handicaps, and other job-related or statistically required items that are generally illegal for you to ask.

The basic rule is that any requirement must be job-related. If you’re not sure, check with the client and satisfy yourself that it doesn’t cross the line.

Let’s say the client wants you to recruit an engineer for an assignment in Iraq. The Director of Engineering with the client tells you he’d like a Middle-Eastern mechanical engineer who is a U.S. citizen or permanent resident with a recent M.S.E.E. from an American university who speaks Arabic with a Gulf dialect. You call our office because it sounds too ethnic.

The Internet posting should identify that the Mechanical Engineer position is in Iraq, that an M.S.E.E. is required, and that the candidate must speak Arabic with a Gulf dialect. Everything else sounds like simply a preference that bears no relationship to job performance.

The American university requirement is not necessarily discriminatory, but it sounds suspicious. The “recent degree” business invites age discrimination.

Including these will have an official surfer wondering about these “suspect criteria.”

Can you add additional facts to make U.S. citizenship a bona fide occupational qualification (BFOQ)? Sure. It can be a classified gig that requires U.S. citizenship for a security clearance. But unless the client can show you in writing where some government agency has certified a BFOQ is necessary for job performance, do not assume it exists. (Equal Opportunity Employment Commission v. Sedita, 755 F Supp 808)

The BFOQ exception to Title VII of the Civil Rights Act of 1964 (42 USC 2000e, et seq.) is intended to be narrowly construed. You must be able to show that asking about these items is reasonably necessary to the operation of the client’s business [42 USC 2000e-2(E)(1)]. This is not likely to occur during your lifetime.

And that Director of Engineering? Expect him to deny that he gave you a questionable requirement when the investigator asks. If it’s in writing from the client, you are jointly and severally liable.

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To participate in future Q&As, email jeff@placementlaw.com. Keep in mind you should always consult with your own attorney. Nothing contained herein should be construed as legal advice. It is for your information only.

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