Reimagining Employment Advertising Law for the New Era

This Article examines and reimagines a feature of employment discrimination law that, as of late, has largely been ignored: the ban on discriminatory advertising. This feature deserves renewed attention as employers actively engage in novel methods of advertising, including the use of career website...

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Bibliographic Details
Published in:Berkeley journal of employment and labor law 2021-06, Vol.42 (1), p.1
Main Author: Seipel, Matthew B
Format: Article
Language:English
Subjects:
Advertising
Bans
Employers
Employment
Employment discrimination
Help-wanted advertising
Laws, regulations and rules
Methods
Online advertising
Prevention
Remedies
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Summary:This Article examines and reimagines a feature of employment discrimination law that, as of late, has largely been ignored: the ban on discriminatory advertising. This feature deserves renewed attention as employers actively engage in novel methods of advertising, including the use of career websites, visual imagery, testimonials, social media, and targeted advertising. These methods are encompassed within a fairly new-but largely embraced-philosophy of employment advertising referred to as "employer branding." These new developments in employment advertising have created unique and subtle forms of discrimination. The law has yet to directly consider these new developments, and it is unequipped to do so. To address these changes, the law must expand the scope of liability: it must prohibit all forms of discriminatory advertising related to employment-not just help-wanted ads; it must ban ads that, in the aggregate, send a discriminatory message; and it must directly outlaw implied discrimination in advertising. These three reforms align with current law and could be implemented without any significant regulatory or statutory changes. The law must also, however, protect employers from implied discriminatory advertising claims brought in bad faith. To that end, a plaintiff must be required to submit survey evidence to support the claim of implied discrimination. This requirement tracks current law, and it is practical. It also furthers a key goal of the discriminatory advertising prohibition, allows for a fairer interpretation of the advertisements in question, and incentivizes employers to proactively root out implied discrimination.
ISSN:1067-7666
2378-1882
DOI:10.15779/Z38B853J6R