Diversity and inclusion are hot topics these days - and rightfully so! Hiring managers and HR professionals spent a lot of time and resources ensuring that their hiring processes do not discriminate. They also spent a lot of time writing job descriptions. Only in recent years has anyone other than your corporate counsel given the wording that you use much thought.
A recent decision from the US 7th Circuit Court of Appeals (Kleber v. CareFusion Corp) should put you on notice that it's time to give your job descriptions and postings some serious thought.
In April 2018, the Court found that a job posting stating that applicants must have "3 to 7 (no more than seven years)" of relevant experience violated the federal Age Discrimination in Employment Act. How many job descriptions have you written the look exactly like that? We see them every day!
So how did they come to this decision? By reviewing the ADEA's legislative history and congressional intent around the statutory language. The statute indicates that it is unlawful for an employer to “fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” The Court focused on this “refuse to hire” language. This means, according to the Court, that the ADEA prohibits discrimination against both current employees AND JOB APPLICANTS.
This case is still pending, and the Court recently granted the employer's motion to rehear the case en banc (a session in which a case is heard before all the judges of a court rather than by a panel of judges selected from them as is normally the case). However, just because the case is still pending does not mean hiring managers and HR professionals should not reconsider their "Best Practices" in this area.
At Sunbolt Recruiting Group, we have seen clients and employers across the nation alter the way they interview candidates about their current compensation. As many of you know, a number of states have recently adopted laws that prohibit employers from asking a candidate what his or her current salary is. This new development from the 7th Circuit should, in our opinion, have a similar effect on how we all draft our job descriptions. Even if your company is not located in the 7th Circuit, and has no other nexus or ties to the 7th Circuit, you should still strongly consider making these changes to avoid potential trouble down the road. It's just the right thing to do, after all.