Q. This past weekend I was very much moved by Memorial Day and all of the sacrifices of our veterans, and particularly those that may have been injured in combat. I also consider myself very progressive on social issues and would like to show my support for feminism, minorities, and the LGBT community. I am also a member of AARP and would like to hire one of my own. Accordingly, I plan on putting an ad on the internet seeking an employee for my company that fits those characteristics. However, before I hit “submit”, I thought I would check to see if it is legal.
A. Good you asked – and it is an interesting question: when is discrimination legal? Is it the same as preference? And, would it matter if the ad was for a straight, male, able-bodied, Caucasian, young, non-veteran?
As a threshold matter, not all discrimination is illegal. Indeed, in its truest sense, the hiring process is nothing more than a form of preference and discrimination – ultimately, an employer prefers one candidate and discriminates against another. Generally, nobody questions whether it is illegal to discriminate based on a candidate’s education, experience, or answers to lawful interview questions. That said, discrimination against a candidate or employee based on the candidate’s or employee’s protected class is illegal. What is interesting about your ad is that three of the categories are likely illegal forms of discrimination while three are likely legal forms of discrimination. In California, The Fair Employment and Housing Act enumerates the following protected classes:
- Age (40 and over)
- Religious Creed (including religious dress and grooming practices)
- Denial of Family and Medical Care Leave
- Disability (mental and physical) including HIV and AIDS
- Marital Status
- Medical Condition (cancer and genetic characteristics)
- Genetic Information
- Military and Veteran Status
- National Origin (including language use restrictions)
- Sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding)
- Gender, Gender Identity, and Gender Expression
- Sexual Orientation
To conduct the analysis for your question, it is helpful to turn the ad around (as noted above) – would it matter if the ad read that you were seeking a straight, male, able-bodied, Caucasian, under 40 year old,non-veteran?
Being straight falls under sexual orientation. As such, a candidate’s sexual orientation (gay or straight) must not be considered in your employment advertisement or hiring decision. Being male is a gender (obviously), therefore, neither males or females may be favored. Race, color, national origin and ancestry are all listed, so it is illegal to favor any person based on those characteristics.
On the other hand, being a veteran, over 40 years old, and disabled are protected, but being a non-veteran / under the age of 40 / and able-bodied are not. As such, it is likely legal to favor those candidates that are veterans, are over 40, or have a disability.
While the above is true, and including a preference in the ad for minorities, gays and females is certainly problematic and illegal, the issue may be slightly more nuanced than it may appear. The Courts (including the United States Supreme Court) have grappled with the idea of whether diversity, in and of itself, is a bona fide and lawful goal of businesses or organization. While most people think diversity is positive and would agree “sameness” should be discouraged, the problem (and irony) is figuring out a way to encourage diversity without offending the very rules established to protect against discrimination in the first place. That said, it is absolutely clear that targeting a category of individuals at the exclusion of all others, based on those individuals’ protected class(es), would be improper both under California and Federal laws.
 In fact, California Assembly Bill 1383, introduced on February 27, 2015, would authorize private employers to establish and maintain a written veterans’ preference employment policy that may be used to hire or retain a veteran over another qualified applicant or employee. Moreover, this Bill specifically provides that such a policy will not be deemed to violate any local or state equal opportunity law or regulation.
This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.