There are both state and federal laws that apply to employment-related advertising in North Carolina, including “help-wanted” advertising. The most important topic here relates to discriminatory employment practices including discriminatory employment advertising, which is discussed first. North Carolina also regulates employment advertising by personnel and job listing services operated in the state as well as advertising for “work-at-home” schemes.
Discriminatory employment advertising. Federal and state laws apply to discriminatory employment practices, including employment advertising. The federal Civil Rights Act of 1964 (CRA) makes it unlawful for an employer to fail or refuse to hire someone because of his or her “race, color, religion, sex, or national origin.”[104] These provisions apply to employers engaged in interstate commerce with 15 or more employees who have worked each business day during at least 20 weeks of the current or preceding calendar year, but the term “employer” under the CRA does not include the United States (or any corporation that the United States owns entirely), Native American tribes or tax-exempt private membership clubs, for example.[105]
Employers covered by the CRA may not use employment advertisements that “indicat[e] any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin.”[106] The CRA allows employers to advertise jobs with a preference based on religion, sex or national origin only when the factor is a bona fide occupational qualification (BFOQ) of the job.[107] The U.S. Supreme Court has interpreted the BFOQ exception narrowly under the CRA in the context of a gender case to include “objective, verifiable requirements [that] concern job-related skills and aptitudes.”[108] In addition, the CRA specifically allows religious organizations, such as churches and parochial schools, for example, to hire an individual of a specified religion to perform work connected with the activities of the organization.[109] Thus, under these provisions, religious organizations may advertise jobs for employees with a particular religious affiliation without violating the CRA regardless of whether the narrower BFOQ exemption applies. In light of all of this, publishers should be cautious in screening for employment advertising that seems to violate provisions in the CRA.
The federal Age Discrimination in Employment Act of 1967 (ADEA) protects individuals age 40 and older from employment discrimination[110] and applies to employers engaged in interstate commerce with 20 or more employees who have worked each business day of at least 20 weeks in the current or preceding year.[111] The ADEA defines “employer” to include state governments and their agencies, and interstate agencies. The term does not include the United States or any corporation the United States owns entirely.[112] The ADEA generally prohibits covered employers from discriminating based on age in the context of employment[113] and specifically prohibits covered employers from using employment advertisements that “indicat[e] any preference, limitation, specification, or discrimination, based on age.”[114] The ADEA has exceptions, including a BFOQ exception when hiring someone of a certain age is “reasonably necessary to the normal operation of the particular business.”[115]
More specifically, under federal rules enacted by the Equal Employment Opportunities Commission (EEOC) , it is a violation of the ADEA to discriminate against individuals in employment because they are age 40 or older unless one of the statutory exceptions applies, such as the BFOQ exception mentioned above.[116] Thus, under the rules, unless exempt, “help wanted” advertisements may not deter older workers with terms such as “age 25 to 35, young, college student, recent college graduate, boy, girl, or others of similar nature.”[117] On the other hand, the EEOC rules allow employers to favor an older individual over a younger one even if the younger one is 40 years old or older (also within the protected class).[118] In other words, an employer can favor a 65-year-old individual over an individual who is either 20 years old or even 45 years old without violating the ADEA. Thus, EEOC rules permit “help wanted” advertisements that specifically seek older individuals using wording such as “over age 60, retirees, or supplement your pension.”[119]
Employers in the state that regularly employ 15 or more employees also are subject to the N.C. Equal Employment Practices Act (NCEEPA).[120] The NCEEPA makes it state public policy to “protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, color, national origin, age, sex or handicap.”[121] Violations of the NCEEPA are investigated by the state Human Relations Commission of the Department of Administration. The NCEEPA does not state anything about advertising, specifically; and federal courts have consistently held that the NCEEPA does not provide a private cause of action.[122] At least one federal trial court in the state has ruled that age discrimination charges under the NCEEPA should be evaluated under the same standards used for the federal ADEA.[123] In addition to the NCEEPA, North Carolina statutory law similarly requires all state departments and agencies, and all local political subdivisions in the state to “give equal opportunities for employment and compensation, without regard to race, religion, color, creed, national origin, sex, age, or handicapping condition.” These state statutes do not mention advertising specifically.
In addition to the federal and state statutes and rules discussed above, the federal Americans with Disabilities Act of 1990 (ADA)[124] prohibits employers who are engaged in interstate commerce and have 15 or more employees (who have worked each working day for at least 20 weeks in the current or preceding calendar year) from discriminating against a job applicant or an employee based on a disability when the individual could perform the “essential functions of the employment position” either with or without “reasonable accommodations.”[125] At the state level, the N.C. Persons with Disabilities Protection Act (PDPA)[126] generally prohibits job discrimination against disabled people by private employers with more than 15 full-time employees in the state.[127] Neither the federal ADA nor the state PDPA specifically mentions advertising, but publishers should be cautious before accepting employment advertisements that seem to be contrary to either or both of these acts.
Personnel and job listing services. Under state statutes, a private personnel service[128] operated in the North Carolina for profit must be licensed[129] and it may not advertise falsely or fraudulently, or without including the name of the service along with the term “personnel service” in the advertisement.[130] In addition, private personnel services may not use any symbols or names – including in their advertising – that consumers are likely to confuse with a government unit or agency at either the state or federal level.[131] Similarly, a private job listing service[132] operated in the state for profit must be licensed,[133] and it must advertise using the business name of the service along with the term “job listing service.”[134] Job listing services may only advertise listings for which they have received and recorded an actual job order from an employer and may not include any information in the advertised listing that is not included in the job order.[135] Job listing services may not publish any information they know or should reasonably know is false or deceptive, and their advertisements may not include the term “no fee” or any similar term that suggests that applicants will not have to pay a fee to the service.[136] Among other statutory exclusions, the terms “private personnel service” and “job listing service” do not include “[a]ny newspaper of general circulation or other business engaged primarily in communicating information other than information about specific positions of employment and that does not purport to adapt the information provided to the needs or desires of an individual subscriber.”[137] This means that the typical employment section of the classified advertisements published in a general circulation newspaper, for example, would not be a “private personnel service” or “job listing service” under the statutes.
“Work-at-home” schemes. Provisions in the N.C. General Statutes prohibit anyone from advertising work-at-home opportunities in the state like “stuffing envelopes, addressing envelopes, mailing circulars, [or] clipping newspaper and magazine articles” unless the advertiser “pays a wage, salary, set fee, or commission” for the advertised work and the work opportunity does not require the purchase of, or a deposit on, materials like “instructional booklets, brochures, kits [or] programs.”[138] Advertising managers should carefully screen for non-compliant “work-at-home” advertisements.
[104] 42 U.S.C. § 2000e-2(a). In addition, these provisions also make it an unlawful employment practice for an employer to fire someone or “discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment” for any of these grounds. Id. There are similar provisions that apply to “employment agencies,” “labor organizations” and “training programs,” as defined in the statutes. Id. at (a), (b), (c), (d).
[105] 42 U.S.C. § 2000e(b)(1)-(2). To be exempt, a private membership club must be bona fide and exempt from taxation under 26 U.S.C. § 501(c). Id. at (b)(2).
[106] 42 U.S.C. § 2000e-3(b). These provisions also apply to “labor organizations,” “employment agencies,” and “on-the-job training programs,” among others, as specified in the federal statutes. Id.
[107] Id.
[108] Int’l Union, UAW v. Johnson Controls, 499 U.S. 187, 201 (1991).
[109] 42 U.S.C. § 2000e-1(a). This exemption applies to “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” Id.
[110] 29 U.S.C. §§ 621 et seq. The purpose of the ADEA is “to promote employment of older persons based on their ability rather than age,” among stated purposes. 29 U.S.C. § 621(b).
[111] 29 U.S.C. § 630(b). An “employer” includes “one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups or persons” that are “engaged in an industry affecting commerce.” Id. at (a)-(b).
[112] Id. at (b). These prohibitions also would apply to an “employment agency” and a “labor organization.” Id. These terms are defined elsewhere in the ADEA. 29 U.S.C. § 630(c), (d).
[113] 29 U.S.C. § 623(a)(1)-(3).
[114] Id. at (e).
[115] 29 U.S.C. § 623(f).
[116] 29 C.F.R. § 1625.2. See also Age Discrimination, EEOC, http://www.eeoc.gov/laws/types/age.cfm (last visited June 18, 2012).
[117] 29 C.F.R. § 1625.4(a).
[118] 29 C.F.R. § 1625.2. The rules specifically state that employers are not required to favor older workers and also state that the ADEA does not affect state or local laws that otherwise prohibit preferences for older workers. Id.
[119] Id. Prior to 2007, this rule actually prohibited these terms. But, in 2004, the U.S Supreme Court held that an employer did not unlawfully discriminate under the ADEA against its workers ages 40 to 49 at the time by eliminating its retiree health program for all workers under the age of 50 at the time. Gen’l Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004) (stating “the [ADEA] does not mean to stop an employer from favoring an older worker over a younger one”). In response, the EEOC initiated a rulemaking. Notice of Proposed Rulemaking, 71 Fed. Reg. 46,177 (EEOC Aug. 11, 2006). The EEOC ultimately amended its rule to allow the previously prohibited terms in employment advertising effective July 1, 2007. Final Rule, 72 Fed. Reg. 36,873 (EEOC July 6, 2007) (codified at 29 C.F.R. Part 1625).
[120] N.C. Gen. Stat. § 143-422.1 et seq.
[121] N.C. Gen. Stat. § 143-422.2.
[122] See, e.g., Royster v. Costco Wholesale Corp., 378 F.Supp.2d 595, 607-08 (M.D.N.C. 2005).
[123] Rishel v. Nationwide Mut. Ins. Co., 297 F.Supp.2d 854, 975 (M.D.N.C. 2003). In addition, federal rules enacted under the federal ADEA specifically indicate that states do not have to allow preferences for older workers as are permitted under the ADEA and its rules. See supra note 118 and accompanying text.
[124] 42 U.S.C. § 12101 et seq.
[125] 42 U.S.C. § 12111(2), (5)(A), (8); 42 U.S.C. § 12112(a).
[126] N.C. Gen. Stat. §§ 168A.1 et seq.
[127] N.C. Gen. Stat. § 168A-5. See N.C. Gen. Stat. § 168A-3 for the definitions of “employer” and “employment agency” among other relevant definitions.
[128] The statutes define “private personnel services” as
. . . any business operated in the State of North Carolina by any person for profit which secures employment or by any form of advertising holds itself out to applicants as able to secure employment or to provide information or service of any kind purporting to promote, lead to or result in employment for the applicant with any employer other than itself, where any applicant may become liable of the payment of a fee to the private personnel service, either directly or indirectly.
N.C. Gen. Stat. § 95-47.1(16). The definition has a number of exclusions including “educational, religious, charitable, fraternal or benevolent organization[s]” that do not accept a fee for services in securing employment for people, for example. Id.
[129] N.C. Gen. Stat. § 95-47.2(a).
[130] N.C. Gen. Stat. § 95-47.6(2), (3).
[131] Id. at (8).
[132] The statutes define a “job listing service” as
. . . any business operated in the State of North Carolina by any person for profit which publishes, either orally or in writing, lists of specific positions of employment available with any employer other than itself or which holds itself out to applicants as able to provide information about specific positions of employment available with any employer other than itself, which charges a fee to any applicant for its services or purported services and which performs none of the activities of a private personnel service other than the publishing of job listings.
N.C. Gen. Stat. § 95-47.19. The definition has a number of exclusions including “educational, religious, charitable, fraternal or benevolent organization[s]” that do not accept a fee for services in securing employment for people, for example. Id.
[133] N.C. Gen. Stat. § 94-47.21.
[134] N.C. Gen. Stat. § 95-47.26(a).
[135] Id. at (b). A “job order” is defined in the statutes as “an oral or written communication from a job listing service to refer applicants for a position the employer has available.” N.C. Gen. Stat. § 94-47.19 (modifying by reference the definition stated in N.C. Gen. Stat. § 95-47.1(11)).
[136] N.C. Gen. Stat. § 95-47.26(c), (d).
[137] N.C. Gen. Stat. §§ 95-47.1(16)d; 95-47.19(4).
[138] N.C. Gen. Stat. § 75-31(1)-(2). These provisions apply to any “person, firm, association, or corporation” that advertises work-at-home solicitations. Id.
