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Can Your Job Postings Get Your Business in Trouble?

State and federal employment laws provide legal protection for employees against things such as racial, sexual, and disability-based discrimination. However, the employer-employee relationship isn’t required for certain protections to apply. Discrimination laws also apply to prospective employees who respond to a job posting for your business.

Furthermore, a properly-crafted job posting can protect you from the misconduct of a prospective employee. It is essential for employers to understand their rights regarding employment law in their state. This blog helps employers gain insight into the “dos and don’ts” of job postings.

Discriminatory Employment Practices

State and federal law protect employees and job applicants against unlawful discriminatory employment practices. Under Title VII of the Civil Rights Acts of 1964, it is unlawful for an employer to refuse to hire, terminate, or otherwise discriminate against employees and prospective employees due to their race, color, religion, sex, or national origin. Similarly, Georgia’s Fair Employment Practices Act of 1978 prohibits employment discrimination based on race, color, religion, national origin, sex, handicap, or age.

As a result, job postings that factor race, age, sex, and handicap can expose your business to liability under both federal and Georgia law. Understandably, certain occupations may inherently involve responsibilities that preclude hiring someone from a protected class of persons. For example, a position that focuses on driving a motor vehicle performing deliveries naturally precludes employing persons who are blind for safety reasons.

Discriminatory Job Postings

Job postings should not overtly discriminate against protected classes. If the responsibilities of a job position tend to categorically filter out a protected class, employers cannot equate it to having the right to openly discriminate against persons in the affected class. Even when the nature of the job excludes the likelihood of hiring a member of a protected class, employers may still need to provide reasonable accommodations for the prospective employee.

For example, a job position focusing on transcribing audio naturally disfavors applicants with hearing disabilities. However, if the hearing-disabled applicant can do the job with reasonable assistance or adaptive conditions, refusing to hire them without considering such accommodations may expose the company to liability.

There are rare instances where discrimination in job postings is not illegal. One example involves casting for film, television, and theater roles. Courts have held that the free speech protections under the First Amendment to the United States Constitution protect the right for creatives to discriminate against the characteristics of a protected class if they conflict with their creative vision. This principle may extend to ancillary casting decisions, such as finding stunt doubles for stars.

Testing for Applicants

Some employers implement written tests regarding the skills and abilities of their applicants. However, federal law prohibits the use of tests to categorically eliminate the physically and mentally disabled unless such tests are relevant to the specific responsibilities of the job. For example, it may be unlawful to require applicants for a job as a teacher to submit to an eye exam to weed out bind people. However, it might not be unlawful to test the vision of applicants for a job as a commercial airline pilot.

Beneficial Employment Practices

Employers may discriminate against applicants that present a risk to the safety and wellbeing of others or who present an ethical danger to the company. As a result, employers may check the criminal and financial backgrounds of applicants.

Certain job postings and applications may ask about the prospective employee’s criminal history, in order to filter applicants with a demonstrated history of criminal disregard for the rights of others. Some employers conduct credit checks to determine the creditworthiness of applicants. The employer’s ability to do this is limited, however, by the Fair Credit Reporting Act (FCRA).

Furthermore, employers may craft job postings to protect themselves against employee misconduct. For example, a job posting or application can include language requiring applicants to affirm that the information on the application is “true and complete” and that misrepresented facts and information may be grounds for termination.

Job postings and applications should also include an acknowledgment for the applicant authorizing the employer to verify their information and a waiver regarding liability arising from verifying their information.

Furthermore, it is good practice for employers to include a statement on postings and application materials that the policies listed in the employee handbook do not create a contract. Job postings may also clarify that the job is on an “at-will” basis.

Consult The Smith Willis Firm for More Information

If you have more questions about your legal rights and responsibilities as a business owner and employer, you should contact an experienced attorney from The Smith Willis Firm. You can benefit from the skilled legal advice and advocacy of Attorney Shevonn Willis to support your legal goals as the owner or operator of a business in Georgia.

Call The Smith Wills Firm at (770) 766-5811 or contact the office online to schedule a free consultation about your case today.

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