Is stating preference for women or people of color on Twitter for a job listing discrimination?

Question

Something I've seen become more common is for folks working at a company to promote a job listing on Twitter, etc. and to say something along the lines of "I'd love to see more women/people of color apply". This is done in the interest of promoting diversity in the industry, but I've always avoided posting these sort of messages as I'm worried that it may be discrimination.

It is illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying for a job because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

For example, a help-wanted ad that seeks "females" or "recent college graduates" may discourage men and people over 40 from applying and may violate the law.

• Prohibited Employment Policies/Practices (Job Advertisements section) U.S. Equal Employment Opportunity Commission

If an employee of a company posts "I'd love to see more women, minorities, and people of color apply to this posting: <link>", is that considered showing a preference, or is that limited to the contents of the job advertisement itself? What are the ramifications if this is not legal?

Answer 1

Under U.S. federal law, and under the few state laws of which I am aware, it is not unlawful to expand a pool of applicants based on a protected class such as race, age, sex, etc., but it is unlawful to select an applicant for employment based on a protected class. An advertisement could lawfully encourage applications by persons having certain protected attributes (e.g., born and raised in South America; Native American; Veteran; transgender) in order to diversify the workforce, but it could not lawfully suggest that hiring preference would be given to applicants with those protected attributes. That's a fine line, and it's easy for an employer to cross it, either willfully or inadvertantly. It's best--from both a practical and a legal perspective--to determine the hiring criteria and process before seeking applicants; and to separate that screening process from the advertising process. The advertising process could, for example, target underrepresented groups as long as it did not preclude other persons/groups from learning about or applying for the opportunities.