Q: Potential employer. Job opening reads DEI. People of color especially encouraged to apply. Is this 100 percent legal
if I qualify in every requirement except for my skin color/sexual orientation/age?!? If not, can I take the company to small claims over it? Thank you!
A:
Under California law, it is generally illegal for an employer to discriminate based on protected characteristics such as race, color, national origin, sexual orientation, or age in their hiring practices. This includes stating a preference for certain protected groups in job postings.
However, there are some exceptions and nuances to consider:
1. Affirmative Action: In certain circumstances, employers may be allowed to consider protected characteristics as part of a valid affirmative action plan to address underrepresentation of certain groups. But this is complex and must be carefully structured to be legal.
2. Bona Fide Occupational Qualification (BFOQ): In very limited cases, a protected characteristic can be a BFOQ if it's essential to the job (e.g. hiring actors of a certain age range to play a role). This is a high bar and doesn't seem to apply here.
3. Encouraging Diversity: Employers can conduct outreach to attract diverse candidates, but the actual hiring decision still cannot discriminate. The line between encouragement and preference can be blurry.
If you believe you were discriminated against, you could file a complaint with the CA Dept of Fair Employment and Housing or the federal EEOC. Small claims court isn't the right venue as it's for monetary disputes, not allegations of discrimination which have their own legal processes.
That said, winning a discrimination claim is very difficult if you were simply encouraged to apply but not hired. You'd need to show the actual hiring decision was discriminatory. Case law indicates "encouraging applications" alone is unlikely to be found illegal in most situations.
In summary, while the job posting language raises some red flags, pursuing a legal claim would be very challenging unless there is clear evidence the hiring decision itself was discriminatory. Consulting an employment attorney for a fact-specific analysis would be advisable before taking legal action.
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