Leah M. Stiegler and Emily Kendall Chowhan are management-side employment attorneys with Woods Rogers in Virginia. Leah is a principal, and Emily is an associate in the firm’s Labor & Employment practice. They host a biweekly video series for company leaders and HR professionals called “What’s the Tea in L&E,” available on YouTube.
When creating job advertisements for an organization, the old sports maxim rings true: The best defense is a good offense.
This is accurate for multiple reasons. First, poorly written job postings can create significant legal liability and open the door to undesirable legal fees and reputational harm. Second, your ideal candidate may pass the position over if the post is confusing or unclear. A well‑executed job advertisement sets clear expectations and proves that your organization does not engage in discriminatory hiring practices.
Below are a few tips for constructing effective and legally sound advertisements for open positions at your organization.
Avoid language that could serve as evidence of bias
Employment discrimination laws apply to current employees as well as job applicants. Therefore, it is important to take time and care when developing job advertisements to protect your organization.
Well-written job advertisements can prove that the employer was not discriminating, but poorly written ones may have the opposite effect. Potential employees often use job postings to advance hiring discrimination claims.
Because age discrimination claims are common, one of the most frequent pitfalls is listing qualifications that seem to discriminate against older workers. For instance, earlier this year, RTX Corp. (formerly known as Raytheon Technologies Corp.) received a proposed class action alleging it perpetuated discrimination against older workers by reserving job roles for recent college graduates. The plaintiffs stated that RTX required job applicants to have a college degree and less than one to two years of experience. The named plaintiff, a 67-year-old man, claimed RTX would not consider him for at least seven positions for recent graduates.
And last year, drugmaker Eli Lilly and Co. settled an age discrimination suit with the U.S. Equal Employment Opportunity Commission for $2.4 million. The lawsuit centered on older applicants for pharmaceutical sales representative positions who allegedly were denied jobs due to the company’s “Early Career” hiring initiative. The “Early Career” hiring initiative was designed to modify hiring preferences and add more millennials to the company’s workforce.
In these instances, not all press is good press.
To avoid possible age discrimination cases, do not use language that could be construed as explicit discrimination. Job advertisements should never state “young people only” or “not suitable for older workers.” Second, avoid any language that implies that younger workers are preferable. For example, do not state that the company is seeking a “digital native,” someone who is “early career,” or someone with “a long runway.” These phrases imply that older workers will not be considered due to age.
Similarly, do not collect college graduation dates from job applicants because doing so could indicate that you are effectively approximating applicants’ ages.
Be cognizant that state law may require pay transparency
There is a growing movement to require that businesses include a pay range in job postings. While no federal law requires pay disclosure in job advertisements, state pay transparency laws are becoming increasingly popular. By mandating more information with which to negotiate a salary, states hope to shrink or eradicate known wage gaps experienced by women and minority workers.
Importantly, these pay transparency requirements vary in depth and complexity. Additionally, some cities or localities have instituted pay transparency laws.
Before posting a position, check with legal counsel to determine whether a state or locality may require pay information in the job post. Although these laws are new, regulatory agencies and plaintiffs have filed suit against employers for noncompliance. Colorado has publicly disclosed fines against employers, including Lockheed Martin Corp. and X Corp. (formerly known as Twitter), for allegedly failing to comply with job ad pay requirements, and Qdoba settled a similar proposed class action lawsuit earlier this year.
Other states are considering similar laws, and in January 2024, the White House announced plans to require pay transparency in job advertisements for federal contractors.
Beware of ‘copy and paste’ job descriptions
Language borrowed from other job ads can create potential liability as well. AstraZeneca Pharmaceuticals, for example, is currently defending a potential collective action suit brought by former female sales employees alleging pay discrimination.
AstraZeneca argued that the day-to-day duties of its national sales representatives vary widely based on multiple factors, and therefore, sales employees are paid different amounts based on legitimate criteria. By contrast, the former female employees showed that AstraZeneca posts identical job descriptions across the country for the same sales roles. Ultimately, these identical job descriptions helped convince the judge that evidence exists “that AstraZeneca sets hiring policies at the national level, oversees its sales force at the national level, [and] has committed gender‑based pay discrimination.”
AstraZeneca’s troubles may have been mitigated if it had customized job advertisements and descriptions for each position. Not only does this set accurate expectations for applicants, but it puts the employer in a better, more defensible position.
To that end, HR should have at least two individuals screen job postings before publication. Requiring a position advertisement to be subjected to multiple opinions and perspectives helps eliminate potential oversight.
In sum, HR should avoid posting job advertisements with explicit or implied discriminatory requirements; double-check whether the post is subject to state or local pay transparency requirements; and ensure that each job advertisement is thoughtfully and accurately curated for the position.