EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
Title VII/Advertising/Affirmative Action/Diversity
April 28, 2006
This is in response to your letter of January 20, 2006, regarding the application of Title VII of the Civil Rights Act of 1964 to employment advertising. Specifically, you have inquired whether Title VII prohibits job advertisements for college or university faculty positions stating that women and minorities are "encouraged" - or in some cases, "especially encouraged" - to apply. While the Commission is unable to assess the legality of particular employment practices outside the context of specific charges of discrimination and a complete investigation, we can discuss this issue generally.
As you know, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., which prohibits employment discrimination on the basis of race, color, religion, sex, or national origin, applies to all terms, conditions, and privileges of employment, including advertising and recruitment. Thus, job advertisements typically should not indicate a preference based on race, sex, or ethnicity. See 42 U.S.C. § 2000e-3(b); 29 C.F.R. § 1604.5. On the other hand, if the employer's existing recruitment methods consistently result in an applicant pool that does not reflect the relevant qualified labor force, the employer can adopt alternative strategies to attract a more diverse pool. Cf. 29 C.F.R. § 1607.3.
The Commission has consistently encouraged employers to adopt proactive measures, or "best practices," that address barriers to equal opportunity while ensuring fairness to all employees. In a 1998 report on such measures, the Commission noted that employers benefit, particularly in today's global economy, from policies that promote equal opportunity and diversity in their work force because such policies enable employers to "draw talent and ideas from all segments of the population." 1 Similarly, in the newly issued Compliance Manual Section on Race and Color Discrimination, we noted that employers "implement diversity initiatives for competitive reasons rather than in response to discrimination, although such initiatives may also help to avoid discrimination."
The Commission has long endorsed focused recruitment as a lawful means of guarding against barriers to employment opportunity. Because members of groups that have been historically underrepresented in a particular profession may be deterred from applying unless they are encouraged to do so, such advertisements help employers attain greater diversity among their applicants. Such diversification is not equivalent to preferential hiring. If whites or men are underrepresented in some positions, it might be appropriate to "encourage" applications from them. For example, in some cases it may be appropriate to encourage men to apply for some positions in nursing.
We hope this information has been helpful. Please note that this letter does not constitute an opinion or interpretation of the EEOC within the meaning of section 713(b) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-12(b).
Peggy R. Mastroianni
Associate Legal Counsel
1 BEST PRACTICES OF PRIVATE SECTOR EMPLOYERS, at http://www.eeoc.gov/abouteeoc/task_reports/practice.html.
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