Download This PaperReimagining Employment Advertising Law for the New Era
54 Pages Posted: 3 Nov 2019 Last revised: 25 Mar 2021
Date Written: October 23, 2019
Abstract
Employment advertising has evolved. And employment discrimination law has not. This Article examines and reimagines a feature of employment discrimination law that, as of lately, has mostly been ignored — the ban on discriminatory advertising. This feature deserves renewed attention now more than ever. Employers are actively engaging in novel methods of advertising, including the use of career websites, visual imagery, testimonials, social media, and targeted advertising. These methods all 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 given rise to unique and subtle forms of discrimination. The law has yet to directly consider these new developments, and it is unequipped to do so.
To become equipped, 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 all would be consistent with current law, and could be implemented without any significant regulatory or statutory changes. At the same time, the law must also protect employers from implied discriminatory advertising claims brought in bad faith. To do so, a plaintiff must be required to submit survey evidence to support his or her claim of implied discrimination. A survey evidence requirement is consistent with current law, and it is practical. It also furthers a key goal of the discriminatory advertising prohibition, allows for a more fair interpretation of the advertisements in question, and incentivizes employers to root out implied discrimination on their own.
Keywords: Employment Discrimination, advertising, employment advertising, social media, targeted advertising, big data, media
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