About six months ago, PBC readers may recall that there was a dust-up regarding the all-too-common use in academia of job advertisements that end with “Minorities and women are encouraged to apply,” or even “strongly encouraged” or “especially encouraged.” The American Economic Association had, quite properly, declined to run such language, on the grounds that it stated a discriminatory preference. Under pressure from the p.c. crowd, however, the AEA changed its policy earlier this year.
At the time, I noted the Center for Equal Opportunity’s and National Association of Scholars’ opposition to such language, too–and the fact that it is contrary to the plain language of the Civil Rights Act of 1964, which contains a provision explicitly making it illegal “to print or cause to be printed or published any notice or advertisement relating to employment … indicating any preference, limitation, specification, or discrimination” based on race, ethnicity, or sex (42 U.S.C. sec. 2000e-3(b)).
CEO and NAS had, long before the AEA controversy, tried to elicit a supportive letter from the Equal Employment Opportunity Commission, but got only a nebulous reply in April 2006. This week, however, the EEOC has posted a much better reply on its website.
Here’s the heart of the new, improved letter:
We commented [referring to the EEOC’s earlier letter] that 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). We noted that there are circumstances under which focused recruiting is used in order to eliminate barriers to employment opportunity and attract a more diverse applicant pool. We also noted that the legality of a particular practice cannot be assessed outside the context of particular facts that have been fully investigated.
Of course, there are different ways to develop a diverse applicant pool and particular circumstances will determine which methods are both lawful and efficacious. You suggested that a way for employers to signal that they welcome applications from all individuals without regard to race, color, religion, sex, or national origin, but without indicating a preference for any group, would be to use language such as the following: “Men and women, and members of all racial and ethnic groups, are encouraged to apply.” We agree, and such a statement is lawful regardless of the surrounding circumstances, even if an employer had no need to diversify its applicant pool.
So, the new letter is still not perfect–in that it doesn’t completely rule out the use of preferential language–but I think it does signal that there are legal problems with the current ads. And in all events it suggests a safer, more evenhanded alternative to those schools who want to make clear that they are casting a wide net: “Men and women, and members of all racial and ethnic groups, are encouraged to apply.”
Now, does any of this matter–that is, will improving the language in the ads have any impact on who applies, let alone on whether preferences continue to be used when actual hiring decisions are made? No doubt discrimination will continue, but I would not discount the psychological and bureaucratic effects–as well as the practical importance–of schools blatantly telling applicants that some of them are more welcome than others. Getting rid of such ads can only help.