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Special thanks to Melissa Allchin and Matthew Gorman.

Federal agencies have renewed their focus on job postings that discriminate against protected groups, even when there is no clear intent to be discriminatory. As evidenced by a significant increase in investigations and fines levied over the past four months, the Department of Justice’s (“DOJ”) Immigrant and Employee Rights Section (“IER”) and the Equal Employment Opportunity Commission (“EEOC”) are actively reviewing external, and often third-party, job postings to determine whether they are unlawfully restrictive.

The Investigations

Compared to a single settlement in all of 2021, the IER has entered into 19 settlements with US employers relating to discriminatory job postings since May 2022. The largest investigation targeted 16 employers who posted job advertisements with unlawful citizenship status restrictions through recruitment platforms used by the Georgia Institute of Technology and other college recruitment platforms. Per the June 2022 DOJ settlements, most of the advertisements restricted job opportunities to US citizens and/or lawful permanent residents. The settlements require the employers to pay civil penalties totaling $832,944, undergo training, and change their recruiting practices.

In a separate settlement in May 2022, the DOJ found that an IT recruitment company improperly emailed job ads with discriminatory preferences for citizenship status that deterred potential candidates from applying as part of a pattern of implementing its clients’ unlawful citizenship or immigration status preferences.

The DOJ’s revived attention on discriminatory job postings is not limited to those expressing a preference for US citizens. In June 2022, the DOJ found that a consulting company’s advertisement was directed only to workers seeking H-1B visa sponsorship. Similarly, in July 2022, DOJ found that a technology company posted job advertisements that deterred asylees, refugees and US nationals from applying, and in at least one instance sought only H-1B visa holders. In both the June and July settlements, the companies were subject to civil fines, required training, and to DOJ monitoring and reporting obligations.

The DOJ is not alone in its enforcement attempts.  In recent years, the EEOC has honed its focus on systemic age discrimination in job postings.  In its 2021 guidance, the EEOC unequivocally stated that job postings seeking candidates with seemingly innocuous traits – such as “recent graduate” and “energetic” – may violate the Age Discrimination in Employment Act (“ADEA”). A July 2022 study by the National Bureau of Economic Research further bolsters the EEOC’s position. The study team created and posted fake job advertisements focused on common age stereotypes: communications skills, physical ability and technology skills. The researchers determined that even when the advertisements lacked obviously discriminatory language, they ultimately discouraged candidates 40 and older from applying.  Examples of such troublesome posts included: “You must be up-to-date with current industry jargon and communicate with a dynamic workforce” and “You must be a digital native and have a background in social media.”

The Law

There are several regulations that prohibit employers from engaging in discriminatory hiring practices, including the ADEA, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act, along with countless state and local laws. 8 USC Section 1324b also prohibits unfair immigration-related employment practices. Specifically, employers are prohibited from discriminating against any individual with respect to “hiring, or recruitment or referral for a fee” due to that individual’s national origin or citizenship status. The individual must be a “protected” person – which includes (i) a citizen or national of the United States, (ii) lawful permanent residents, (iii) refugees and (iv) asylees, with some additional restrictions relating to those who have failed to timely apply for naturalization.

Investigations by the IER and EEOC can be time-consuming and disruptive to a business. Civil penalties  range widely – but can be hefty – depending on the scope of the alleged discriminatory actions. Perhaps of equal importance is the potential reputational harm resulting from an investigation and public announcement of settlement, in addition to required reporting and monitoring from the DOJ.

Employer Takeaways

Given the clear focus and mandate from the DOJ and EEOC regarding discriminatory job postings, employers must take additional care to ensure their job postings do not run afoul of anti-discrimination laws. Critically, this is true not just for the employer’s external website job postings but also those posted by third parties. Employers should consider the following best practices:

  • Conduct a review of current protocols for posting job advertisements on the company website and with external/third-party vendors.
  • Require third-party vendors to provide copies of all job postings for pre-approval before publishing.
  • Ensure those responsible for managing external job postings have undergone anti-discrimination training targeted to avoid incidental discriminatory postings.
  • Except in limited circumstances, never reference citizenship status, immigration status, national origin, age or any other protected category in job postings.