EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII & ADEA: Job Advertisements

April 8, 2008

Dear ____:

This responds to your inquiry of March 18, 2008, seeking guidance about the legality of particular wording in “help wanted” advertisements in your newspapers. You want to be able to help your clients place effective non-discriminatory advertisements.

As you know, the Equal Employment Opportunity Commission (EEOC) EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., which prohibits discrimination on the basis of race, color, sex, religion, and national origin; the Equal Pay Act of 1963 (EPA), 29 U.S.C. ' 206(d), which prohibits employers from paying unequal wages to employees of the opposite sex within the same establishment and performing substantially equal work; the Age Discrimination in Employment Act (ADEA) of 1967, as amended, 29 U.S.C. ' 621 et seq., which protects employees age 40 or over from discrimination because of age; the Americans with Disabilities Act (ADA), 42 U.S.C. ' 12101 et seq., which bars employment discrimination against qualified individuals with disabilities on the basis of their disabilities; and the Rehabilitation Act of 1973, 29 U.S.C. ' 791 et seq., which prohibits, among other things, discrimination in federal employment on the basis of disability.

You should be aware that the EEOC does not generally assess the legality of particular employment practices outside the context of specific charges of discrimination. This is because the appropriate resolution of discrimination charges involves an analysis of facts that differ from case to case. We can, however, provide you with the following general guidance on applicable principles.

You first ask whether it is legal for an employer to use phrases in job advertisements such as “women or minorities are encouraged to apply.” To develop an applicant pool that reflects the demographics of the qualified labor force, it may be necessary to encourage members of underrepresented groups to apply. We know of no case in which an employer has been held liable for using such language in their job advertisements. As one court observed, “[a]n employer’s affirmative efforts to recruit minority and female applicants [do] not constitute discrimination. An inclusive recruitment effort enables employers to generate the largest pool of qualified applicants and helps to ensure that minorities and women are not discriminatorily excluded from employment. This not only allows employers to obtain the best possible employees, but it is an excellent way to avoid lawsuits.” Duffy v. Wolle, 123 F.3d 1026, 1038-39 (8th Cir. 1997).

Next, you ask whether use of the phrase “and others” renders nondiscriminatory an otherwise discriminatory ad. You specifically mention: “seeking stay-at-home-Moms,” “seeking couples and others,” and “seeking retirees and others.” “Seeking” a particular kind of applicant denotes a preference for that group; it is not just “encouraging” people to submit applications. Thus, seeking persons on a protected basis, such as race or gender, would violate EEOC-enforced laws. Using the phrase “or others” probably would not redeem such an otherwise discriminatory ad, although we know of no cases involving the question.

The phrase “stay at home moms” implicates Title VII because it expresses a preference based on gender and, as noted, use of the phrase “and others” would probably not redeem it. However, EEOC enforced laws do not prohibit employers from seeking to hire “couples” because those laws do not cover marital status discrimination or any other status that would include couples. New ADEA regulations explicitly permit employers to favor relatively older persons and to express that preference in job advertisements. Section 1625.4, 72 FR 36873, July 6, 2007, http://edocket.access.gpo.gov/2007/E7-13051.htm. Those regulations are based on the Supreme Court’s interpretation of the ADEA in General Dynamics Land System, Inc. v. Cline, 540 U.S. 581 (2004). The Court held in Cline that the ADEA prohibits discrimination only based on relatively older age, not discrimination based on age generally. Advertising for couples or retirees might, however, implicate those state or local laws that prohibit marital status discrimination or age-based discrimination against relatively younger persons.

Finally, you ask whether there is a “definitive policy on gender-specific job titles.” Noting that the term waitress is gender specific and not used in job advertisements, you question whether advertisements for “journeyman” are similarly discriminatory. You state that you understand the legally appropriate term to be journey level but that some of your clients insist on using the term ‘journeyman’ because of government grant/apprenticeship policies.” Using a narrow term such as “waitress” in a job advertisement implicates federal EEO law because the term is likely to deter members of protected groups – in this case, men – from applying for such jobs. Although the term “journeyman” can be considered gender-specific, its use probably would not implicate the federal EEO laws to the extent that it is a term of art designating a particular skill level. The Commission has taken no position on whether “journeyman” or “journey level” is appropriate.

For additional information about EEOC enforced laws, see http://www.eeoc.gov and Section 632: Violations Involving Recordkeeping or Posting of Notice, EEOC Compliance Manual, Volume II (BNA) at ' 632.2, “Employment Opportunity Advertising;” 632.0001.

We hope that this information is helpful to you. Please note, however, that this letter does not constitute an opinion or interpretation of the EEOC within the meaning of § 713(b) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-12(b), under § 10 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 255 (EPA), or under ' 7(e) of the ADEA, as amended, 29 U.S.C. '621 et seq., which is also incorporated in Section 10 of the Portal-to-Portal Act.

Sincerely,
/s/
James Cooks
Senior Attorney Advisor

This page was last modified on May 6, 2008.

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