What do CareerBuilder, Indeed, and Monster have in common? You would be correct if you answered that they are among the most used websites by recruiters and human resources professionals when they are attempting to fill vacant positions. They also represent half of a group of six website organizations, however, who recently received letters from Illinois Attorney General Lisa Madigan warning them about their engagement in potentially discriminatory practices.
The letters, sent out on March 2, 2017, requested data from the websites and apps showing what measures the companies have taken to ensure that job seekers over the age of 40 are not being discriminated against in violation of Illinois Human Rights Act and the Age Discrimination in Employment Act. The Attorney General suspects that certain aspects of the websites may make it more difficult for individuals of a certain age to create and submit profiles that accurately reflect their training, skills, and abilities.
The specific problem identified by Madigan’s office relates to drop down boxes users are required to select information from before they can submit a profile or apply for a job. Potential applicants are asked to select the start and end dates for previous employers or their graduation year from a series of pre-selected years. Unfortunately, the dates provided by the websites do not go back far enough for individuals of a certain age to submit correct data.
While some of the sites allow applicants to report activities that occurred in the 1960’s and 1970’s, at least one only allows for the entry of event dates that occurred in 1980 or later. As a result, applicants 52 years of age and older may not be able to enter correct data on that particular site. Madigan explained that not allowing older individuals to submit this information could prevent them from being considered for certain positions.
What does the Illinois Attorney General’s investigation mean for employers? Companies need to examine their online application systems to ensure they do not have similar issues with respect to potential discrimination against older workers. Moreover, employers should review their actual hiring practices to see if they are danger of potential charges themselves.
In addition, employer should consider whether using such drop down menus for dates is worth the risk of a potential age discrimination claim. Employers who decide to use them should make sure that options involving years go back far enough to allow any person who reasonably could be expected to still be a part of the workforce the ability to apply. As we have experienced more often in recent years, individuals are working much later in life now, often into their 70’s, 80’s, and later.
Human resources professionals also should discuss with their recruiters and hiring managers appropriate means of posting jobs. If the Illinois Attorney General finds these job search websites to be unlawful, it could have negative ramifications for employers who exclusively use them for recruiting. Employers who only use such sites when hiring may be found guilty of discrimination by default. Thus, it is important for companies to utilize a variety of resources when recruiting and advertising job openings. Employers can use many of the free resources available, such as state employment agencies, to assist in finding qualified applicants.
Further, regardless of how a position is advertised, employers can offer an alternative to applying other than directly through the online job board. Specifically, employers can maintain their own online application system or allow interested individuals to send applications directly to their company to avoid any flaws maintained by outside websites. In addition, having policies and practices in place that prevent and actively eliminate age discrimination in the hiring process, a company may be able to prove that they have not violated the law despite their use of potentially suspect websites.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.