COMPLIANCE PERSPECTIVE

Beware of Accidental Discrimination in Lab Job Ads

Before civil rights laws, job ads like these were seen as perfectly normal. Today, employers aren’t allowed to post job ads with phrases that exclude or express preferences based on race, gender, nationality, religion or other grounds protected by discrimination laws.

The Risk of Accidental Discrimination
Of course, the folks who do the hiring and recruiting for your lab know better than to use a phrase like "No Irish need apply" in a written or internet job ad. But what they may overlook is how statements that appear neutral on their face can still discriminate if they have the effect of excluding or preferring a particular group. And there are all kinds of everyday phrases and code words that seem harmless but can get you into trouble.

Example: The argument could be made that requiring job applicants to have a valid driver’s license is a form of discrimination against individuals with visual impairments and other disabilities that make them incapable of driving.

If You Require It, You Must Justify It
The moral is not that requiring job applicants to have a driver’s license is illegal. Preferences and qualifications that may be otherwise discriminatory are not only acceptable but essential for some positions. The fancy legal name for this concept is "bona fide occupational requirement" (BFOR). Thus, requiring a valid driver’s license would be deemed a BFOR for a lab courier who needs to drive to collect samples from remote locations.

A couple of more legal technicalities you need to know to understand how the BFOR rule works. In a legal proceeding, job applicants or employees generally have to make out what’s called a prima facie (Latin for "first face") case showing that the job ad was discriminatory. And that’s not always a slam dunk.

But when and if the prima facie case is made, the burden shifts to you to show that the ad is justifiable as a BFOR. To meet the burden, you must prove three things about the problematic preference, qualification or restriction expressed in the job ad:

  • It is essential to performing the job;
  • You adopted it in the good faith belief of its necessity to fulfill a legitimate and non-discriminatory work-related purpose; and
  • It really is reasonably necessary to accomplish that work-related purpose.

Thus, for example, requiring physicians to have a medical degree is a BFOR even if it has the effect of excluding minorities who do not have access to medical school.

What To Do
Moving from law to day-to-day operation, the takeaway is to ensure that your lab can justify every qualification, preference and restriction you list in your job ad as a BFOR in case you get sued. Better yet, because prevailing in litigation is less desirable than preventing disputes altogether, be sensitive to the language you use in your job ads and the hidden (and inadvertent) discriminatory messages they may send.

8 Code Words to Avoid
There are eight phrases and buzzwords that raise red flags of discrimination that you want to avoid using if possible.

1. "Recent Graduate"
Because recent graduates are predominately younger, the phrase may be deemed a veiled method of excluding older job applicants in violation of age discrimination laws.

2. “Experienced” or “At Least X Years of Experience”
"Experience" is also a red flag for age discrimination but in the opposite direction— it indicates a preference for an older job applicant.

3. “American Citizenship” or “American Experience”
Requiring American work experience or citizenship may be seen as a covert way of excluding immigrants and discriminating on the basis of nationality, ethnic origin and even race and religion.

4. “Proficiency” in English or Other Language
Fluency or proficiency in a language may also be a form of ethnic or nationality discrimination that you would have to justify as a BFOR.

5. “Accent-Free”
Requiring job applicants to speak a language without an accent is even more problematic than a fluency requirement. For example, while it might be a BFOR to require a receptionist to speak English, requiring that he/she speak unaccented English would much harder to justify.

6. “Post-Secondary Degree”
Higher education requirements may pose barriers for the disabled and even races underrepresented in universities and trade schools. The simplest way to avoid opening this can of worms is by not requiring a higher degree unless it is essential. Don’t insist on a college degree where a high school diploma will do.

7. Personality Traits
Personality and professional traits may be associated with some groups to the exclusion of others. Common examples your lab should try to avoid:

  • "Dynamic" = young;
  • "Career-minded" = male;
  • "Dedicated" = male;
  • "Good fit" = individuals with the same characteristics as current employees;
  • "Traditional" ≠ women, minorities, LGBT individuals;
  • "Long-term career potential" ≠ older.

8. Gender-Specific Terms like “Waitress”
Even though they’re used in everyday language, gender-specific terms like "waitress" and "handyman" carry the taint of discrimination and should be avoided. While this may sound like a lecture about being politically correct, in the context of discriminatory job advertising the words you use to describe the position can have a significant and direct bearing on your liability.

Example: A janitor claims she was fired because she was a woman and the co-op community wanted to replace her with a man. The administrative tribunal agrees and awards her $5,000. It also orders the co-op to hire an outside consultant to create a non-discrimination policy. The crucial piece of evidence is the job advertisement calling for "CLEANER/MAINTENANCE MAN." We get that "’maintenance man’ may be a casual idiomatic label for the job." But, the tribunal continues, use of a "male-oriented phrase" to designate a job title "has an exclusionary impact for women because it evinces a distinction based on gender. . . and reinforces negative stereotypes about the ability of women to do maintenance work."

Moral: Use gender-neutral rather than gender-specific terms to describe the advertised position.

Don’t Use Do Use Instead
Cleaning lady Cleaner, cleaning staffer
Chairman Chairperson
Salesman Salesperson
Handyman Maintenance person
Foreman Supervisor
Waitress/Waiter Wait staff
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