November 15, 2021 | By Edward J. Easterly, Esq.
TAGS: operations, legal issues, journal
NACE Journal, November 2021
In today’s world, career center professionals are faced with a multitude of potential issues. One such issue is weeding out, to the extent possible, potential problematic job postings available to students.
Before distributing a job description, career center staff should be aware that there could be legal problems lurking in some of the job requirements. To avoid those problems, job postings that are posted or provided by the career center should be vetted in as thorough a manner as possible.
There are several issues that career center professionals may need to address when reviewing a job posting. As an initial matter, with much of the work world moving to remote work, a number of employers do not have a traditional workplace. In the past, the lack of a workplace may have served as signal that a posting might be a problem and warranted closer scrutiny. As that is no longer the case, career center professionals need to consider other means for weeding out “fake” job postings.
The primary reason individuals post “fake” job postings is to obtain the personal information of applicants to steal an individual’s identity. When reviewing postings, career center professionals can look for certain identifiers for such “fake” postings, which include, but are not limited to, the following:
While it is not incumbent on the career center to vet every job posting to determine if it is legitimate, if the career center is posting a job or linking to a post, it should provide a disclaimer that notifies individuals of the potential risks associated with job postings and provide examples of potential scams.
The disclaimer should also include limitation of liability language that informs individuals that the career center is not responsible for any losses incurred by the individual, financial or otherwise. The information can also provide links to websites that provide information on “scam” employers so applicants can conduct their own search into the job postings. One such site, for example, is www.scam-detector.com/job-scams.
In addition to vetting job postings for fraud, career center professionals are presented with additional issues, specifically, postings that include discriminatory language or qualifications.
For example, the following qualifications included in a job posting could be deemed illegal according to state or federal antidiscrimination laws:
Career center professionals need to know the specific wording in these and other job requirements that could be problematic. They should also know that federal and state laws protect individuals from discrimination based on certain protected classifications that include, but are not limited to, race, sex, national origin, age, sexual orientation, and disability.
State laws may offer additional protections based on other classifications, such as lawful off-duty conduct, e.g., drinking or smoking.
Nevertheless, the qualifications listed above are problematic as they may exclude certain individuals based on their protected classifications. Courts have indicated that the first example may exclude individuals on the basis of age, in violation of state and federal law, as it can be inferred an employer is looking for younger applicants. The second example requires applicants of a specific gender, but all genders are protected classes and one cannot be given preferential treatment over another. The third example excludes anyone who had a “mental illness,” which could constitute disability discrimination under the Americans With Disabilities Act. Finally, the fourth qualification may intentionally or unintentionally restrict the pool to male candidates, because fewer female candidates may meet those requirements.
The question that needs to be answered from a career center perspective is whether the problematic language makes the job posting discriminatory. This would depend on whether the employer has a defense to establishing such qualifications. One such defense is that the requirement is a bona fide occupational qualification (BFOQ). In this regard, federal law (Title VII) provides as follows: “[I]t shall not be an unlawful employment practice for an employer to hire and employ employees…on the basis of…religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise….”
A BFOQ is a job requirement that employers are allowed to consider when making decisions about the hiring and retention of employees. A BFOQ that would generally be deemed discriminatory is allowed by courts due to an established fundamental business need. It must be noted that the U.S. Supreme Court has specifically stated that this is a “narrow exception” for employers to use.
To establish a BFOQ defense, an employer must prove that the qualification is necessary to the success of the business (also referred to as the essence of the business operations), and that the specific group or class of employees would be unable to perform the job safely and effectively. The employer would have to show a need for a certain type of worker because all other types do not have the characteristics crucial to job success. The focus is on the business necessity of using an explicitly prohibited classification.
One example of a BFOQ is a mandatory retirement age for bus drivers or airplane pilots for safety reasons. Another would be a case in which a church requires its clergy to be of a certain religious denomination—the church may legally bar from employment anyone who is not a member of that denomination. However, when hiring for a janitorial position, discrimination based on religious denomination may be illegal because religion has no effect on the person’s ability to perform the job duties.
Other examples of BFOQs include the use of models or actors with certain characteristics for authenticity, or requiring emergency personnel to be bilingual, as long as that is judged on language competency, not national origin.
In terms of including qualifications that suggest a specific gender, i.e., males, courts ruling on BFOQ defenses in the past have routinely rejected defenses where employers excluded women based on jobs requiring the ability to lift a certain amount of weight. The ability to perform the task safely and effectively must be the employer’s focus, regardless of gender, as that is the essence of the BFOQ defense.
In this regard, an employer must establish that it is necessary to hire a certain gender to operate the business, which would include the safety or health concerns of the employees or the public at large. Some courts have ruled that the BFOQ applies where it is necessary to be one sex or the other to perform the job duties. For example, courts also have stated that only one particular gender should perform specific jobs due to safety or privacy concerns associated with the positions, such as a prison guard at an all-male facility. In one case, a court held that “an employee’s very womanhood would directly undermine her capacity to provide the security that is the essence of a correctional counselor’s responsibility.”
Employers and career center professionals must also be mindful that sexual orientation and gender identity are protected classifications. Accordingly, job qualifications that suggest a specific gender is required may impact such protected classifications and give rise to additional claims for employers.
On the other hand, courts have stated that a BFOQ defense does not apply for employers, such as airlines, that simply prefer female applicants in particular jobs. The BFOQ defense was also rejected in a case where an airline tried to disqualify pregnant women from becoming flight attendants. The court said there was no direct relationship between the employee’s pregnancy and her ability to perform the job duties, and the law protects individuals from being subjected to pregnancy discrimination.
The business necessity test also is inapplicable to broad, generic purposes, such as the desire of a company to attract business or customers. The Equal Employment Opportunity Commission (EEOC) further limited the BFOQ, stating that labeling jobs as “male” or “female” could deny opportunities to one sex or the other, or discriminate against an individual based upon their gender identity. In addition, the BFOQ defense does not apply in the following instances:
An employer must show there is no reasonable alternative but to exclude a certain class of people. These cases generally involve privacy or safety issues at the place of employment. For example, a court found that a prison could have transferred some duties, such as strip searches, that were a minimal part of the job in question to gender-appropriate guards instead of excluding an entire gender.
Customer preference, unless it is tied to privacy or safety concerns, does not fulfill a BFOQ. In instances with privacy or safety concerns, an employer should accommodate the customer need instead of excluding an entire class of applicants.
It should also be noted that there are proposed laws that would impact the BFOQ. For example, the Equality Act would alter the BFOQ provided for by Title VII to provide additional protections for individuals based on their gender identity.
The Equality Act would modify the BFOQ language in Title VII as follows: [I]t shall not be an unlawful employment practice for an employer to hire and employ employees…on the basis of …religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, if, in a situation in which sex is a bona fide occupational qualification, individuals are recognized as qualified in accordance with their gender identity.”
Accordingly, employers and career center professionals must stay up to date on any and all changes to the law as they review postings.
One additional qualification included in job postings that has recently become an issue is as follows: “Individuals must disclose their COVID-19 vaccination status at the time of application.”
Students and career center professionals alike have to be prepared to address whether that question is legal or appropriate. Unlike the questions noted elsewhere in this article, which raise issues of discrimination, requiring an individual to disclose their vaccination status during the hiring process is not discriminatory or illegal, unless a state imposes a specific law prohibiting such an inquiry. In this regard, the EEOC has specifically stated that an employer is permitted to pose this inquiry to individuals as the question is not a medical inquiry.
Additionally, contrary to some Twitter postings, an employer merely inquiring about the COVID-19 vaccination status of an applicant has no implications for the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Without needlessly delving into the intricacies of HIPAA, that law is designed to prohibit “covered entities” from disclosing the medical information of patients: It is not designed to prohibit employers from requesting such information during the hiring process.
What if a discriminatory job posting inadvertently gets past the staff review? Are career center employees—or their institutions—liable for the illegal requirements in that posting? The answers are not clear cut, but generally, the individual career center professional will not be directly liable for posting a discriminatory job description, unless the individual played a role in the hiring process (and depending on state law).
Liability for such discriminatory acts usually falls directly on the employer that is illegally restricting its application process.
Under Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause, the institution may run into legal issues for posting these advertisements on its campus or through its job posting service. For the posting to have potential liability, an entity must be a “state actor.” Such liability is limited to those colleges or universities that accept federal funding.
There are no current cases that implicate colleges, universities, or the career centers of institutions that post or promote job opportunities that violate either federal or state antidiscrimination laws. (Note: If such a case is ever brought against an institution, a court would likely consult the relevant case law in the recruitment and admission context to settle on a ruling.)
By way of background, when a school that receives federal funding implements a program that is exclusionary or discriminatory, it will generally be subject to close analysis. The program must be necessary to further the institution’s interest in diversity and must not unduly restrict access to program benefits for students who do not meet the race-based eligibility criteria.
This type of program should be narrowly tailored to remedy the present effects of past discrimination or implemented to promote diversity. If it is not narrowly tailored, it is likely to be found to be discriminatory under the law.
The college or university must thoroughly examine the program and show that the means chosen fit the program closely.
Regarding a discriminatory job posting, such a narrowly tailored analysis would show that posting the job was considered judiciously. The school would have to show that it is posting such positions to remedy the school’s poor reputation with a certain class of individuals. In other words, by posting these jobs, the school’s goal is to rectify past discrimination.
If the job posting is based on a BFOQ, the institution may provide the opportunity to students with less fear of reprisal. Aside from the noted risks, the legal exposure to a college or university for posting such a job description without intent to discriminate or promote discrimination is limited.
The career center (or institution) should develop a policy or procedure to limit the chance that a discriminatory job posting will slip through the cracks.
As appropriate, such a policy should include the criteria by which an “exclusive” job posting would be accepted by the career center or institution.
As noted above, a career center should also include disclaimers in the job posting website or posting location that informs students and applicants of the potential risks and holds the center and its employees harmless for any such postings. While such a disclaimer may not prevent a lawsuit, it can act as a defense if one is filed.
Given the world we currently live in, it is imperative that career services professionals remain diligent and current on their requirements to provide beneficial and legal postings, not only to protect their students, but to protect themselves and the educational institution.
Edward Easterly, Esq., is a founding partner of Hoffman Hlavac & Easterly and focuses his practice on labor and employment law and civil and commercial litigation. Easterly represents clients on a wide range of matters related to Title VII, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Pennsylvania Labor Relations Act, and the Pennsylvania Human Relations Act. He advises clients, including human resources representatives and business owners, on a range of labor and employment matters, including the enforceability of employment agreements, unfair labor practice charges, wage and hour matters, discrimination and harassment issues, OSHA issues, I-9 compliance, and non-compete covenants. Easterly assists universities, private businesses, municipalities, utilities, manufacturers, and nonprofit organizations with their labor and employment matters.