Job Advertising: Avoiding Discrimination When Hiring

Ban the Box/Fair Chance Act:

• • Do not use language on job advertisements regarding criminal history inquiries or background checks. Instead, such inquiries should not be discussed until after a formal job offer has been made.

Credit Checks:

• • Do not run credit checks on applicants and employees unless required by law; employees are working in law enforcement; employees will be a named signatory; or employees work in positions that involve access to social security numbers, credit card information, dates of birth, money transfers, proprietary information, or having regular access to $10,000 or more in cash.

Drug Tests:

• • Do not require a drug test unless the employer has a lawful, written policy, employee consents, and drug tests are administered for all applicants applying for the same position.
    

Marijuana:

• • Do still enforce a drug free work place, if desired by the company.

Age Discrimination:

• • Do not cite age-specific ranges or discourage people over 40 from applying for a job.
  • Do not use words such as “recent college graduate;” instead, use words such as “entry level.”
  • Do not use “junior” or “senior” in job advertisements unless they are part of the actual job title.
  • Do not post jobs at locations where only a certain age group might see the advertisement.

Religion:

• • Do not mention or hint at religion in job postings unless a business qualifies as a religious organization under Title VII.

U.S. Citizenship:

• • Do not state U.S. citizenship required in advertisement.
  • It is permissible to state successful applicants will be required to complete an I-9 to verify their eligibility to work in the U.S.

Americans With Disabilities Act:

• • Do not include terms in advertisements such as “able-bodied,” “strong,” or “healthy.”
  • Do state exact tasks required, such as, “must be able to lift 50 pounds.”

Salary History:

• • Do not ask job applicant about salary history.
  • Do post pay scale in job listings.

Gender-Based Language:

• • Do not hint at a preferred gender in job advertisement, (i.e. use wait staff or server instead of waiter or waitress, sales person or sales representative instead of salesman).

Race:

• • Do not mention race in job postings.

LGBTQ:

• • Do not mention sexual orientation or gender identity in job postings.

Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the State’s largest law firms. The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas. For more information about Davenport Evans, visit www.dehs.com.