Do Your Job Descriptions Discriminate?

Most businesses wouldn’t dream of writing a job description that directly discriminates against a protected class of individuals. Imagine what would happen if a software engineer position said "successful applicant will be under 40 years old” or “successful applicant must be Christian.”

The backlash would be swift. Yes—age, race, gender, religion, national origin, and disability are some of the classes that are specifically protected by law. What that means for your business is that you can’t use those criteria as a basis for disqualifying someone unless the requirement is reasonably related to the job.

What does "reasonably related" mean?

Well, let’s take Hooters restaurants and Hugh Hefner’s former Playboy Club as examples. Both of those business models are based on attractive women wearing scanty uniforms designed to emphasize their female attributes. Men simply would not be able to fill out those uniforms in the same revealing way. Insisting that men be Bunnies or Hooter Girls would dramatically change the appeal of the business. As a result, when the issue was tested in a suit against Hooters, the gender discrimination was upheld even though gender is a protected class.

While the need to single out a particular class in a job description requirement is few and far between, it is much more common for classes to be singled out indirectly.

When Kohler Company, the manufacturer of bathroom fixtures, imposed a height minimum of 5’4” for all employees working on the manufacturing line, the restriction appeared to be reasonably related to the job. The policy objective was to make sure the employees were big enough to meet the physical requirement of the job—to lift heavy porcelain fixtures.

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Unfortunately, the height restriction had a disproportionate impact on women, who tended to be shorter, and resulted in making them ineligible for the higher-paying jobs on the production line. In fact more than two thousand women were turned down for such jobs during a 2-year period during the 1990s.

While a weight lifting requirement would have been reasonable, height was the wrong way to measure it because it ended up including women under 5’4” who could meet the lifting requirements. The height requirement was therefore unreasonable and unsupportable under the law, and the Kohler case was ultimately settled with $886,500 being paid to the women who were turned down for the production jobs.

What does that mean for you? Well, the Kohler case is a cautionary tale of how discrimination against protected classes is often subtle and indirect. Employment policies and practices should be reviewed periodically with an eye toward evaluating whether what your organization is doing has a disproportionate impact on protected classes. It’s not enough to review the policies. You need to evaluate of what happens when the policies are applied and what impact it has.

Do your job descriptions discriminate unintentionally?

Remember, when it comes to employment discrimination, you don’t have to discriminate directly or intentionally to be liable. If a narrower set of criteria can achieve the same business goal, use it. Today’s EEOC is more sensitive to such factors than ever before, and reviewing your employment business practices before they do is a great way to stay ahead of the legal liability curve.

RELATED: 14 Key Issues in Negotiating Employment Agreements

About the Author

Hanna Hasl-Kelchner is a business legal strategist, author, speaker, and trainer who coaches business people on how to avoid lawsuits. She is the author of The Business Guide to Legal Literacy: What Every Manager Should Know About the Law. Follow Hanna on Twitter @nononsenselawyr.