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Can an employer advertise or state a hiring preference for a specific protected class such as veterans?

In some circumstances it is appropriate to implement a hiring preference for certain classes. It will depend on what protected class an employer is focusing on and whether there is a bona fide occupational qualification (BFOQ) to justify the preference. Caution is advised when desiring to state a hiring preference for a specific protected class.


Federal and state tax credits are often available for employers that hire veterans, and the federal government as well as other state and local agencies explicitly state a hiring preference for veterans. In addition, government contractors and subcontractors subject to Office of Federal Contract Compliance Programs (OFCCP) regulations have an obligation to affirmatively recruit veterans as well as other protected classes of individuals. Private employers that have Title VII of the Civil Rights Act compliance obligations may also state a preference for hiring veterans. However, those employers still have a duty not to discriminate against any other protected class.


Similar to veteran preference, government agencies and government contractors and subcontractors often have affirmative action obligations related to hiring individuals with disabilities. Tax credits and other programs promoting the employment of individuals with disabilities can incentivize employers to actively recruit candidates with disabilities.  


Title VII expressly prohibits employers from discriminating against individuals on the basis of their national origin. However, some jobs, most commonly government positions or positions with government contractors and subcontractors, require a certain level of security clearance, and because of that requirement, only U.S. citizens can be considered. This is a common example of a bona fide occupational qualification (BFOQ). A BFOQ is a qualification necessary to perform the job, and the qualification may cause the employer to discriminate against other protected individuals. An employer should state a citizenship preference only if a legitimate BFOQ exists.


The same considerations hold true for employers looking to establish a preference based on religious beliefs. The Equal Employment Opportunity Commission (EEOC) has ruled that certain religious organizations can require candidates to share the religious views of the organization to be considered for employment. This exemption applies to institutions whose "purpose and character are primarily religious."

Gender, Age and Race

Employers establishing legitimate preferences on the basis of gender or age are rare. It is often asserted that stated preferences are entirely prohibited on the basis of race. Therefore, it is difficult to imagine that the manufacturer of a hair product marketed almost exclusively to African Americans would be at fault for stating a preference to hire an African-American model for its advertising campaign.

Any reliance on the BFOQ exception should be carefully considered. It would be wise to seek a legal opinion before posting a position relying on a BFOQ qualification because once the posting is done, it is too late; applicants without the qualification can apply, be rejected and sue. 


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