A little-known and rarely litigated provision in Title VII of the Civil Rights Act of 1964 prohibits employment agencies from printing or publishing “any notice or advertisement” that indicates “any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin” unless the protected category is a bona fide occupational qualification.
A federal court in Chicago recently ruled that prohibition means exactly what it says.
Xing Ying is an unlicensed employment agency located in Chicago that finds jobs and refers and places workers in those jobs for a commission. For a number of years, Xing Ying placed daily advertisements in World Journal, a widely circulated Chinese language newspaper. The publication sells ad placements for its Chicago edition, which is distributed in the city and surrounding suburbs.
Between April 2011 and July 2012, Xing Ying’s advertisements included the following language:
Chicago Xingying Employment Agency
Please contact Ms. Zhang
Lots of Mexicans
Honest and sincere (provide the best Mexicans)
Sushi and Teppanyaki
Station pickup service
Open 7 days, 24-hour service
Xing Ying’s ads in World Journal from July 2012 through October 2015 were substantively identical, except they also included the words “All trades and professions” after the words “Sushi and Teppanyaki.”
The Illinois Attorney General’s (AG) Office, led by AG Lisa Madigan, brought suit against Xing Ying under Section 2000e-3(b) of Title VII, which applies to employment agencies. There was no dispute over whether the advertisements were published or what they said. With those facts uncontroverted, the state asked the court to enter judgment in its favor without a trial.
According to the state, Xing Ying’s advertisements violated the plain language of Section 2000e-3(b). The AG argued that Xing Ying’s advertisements indicated a “specification” based on race or national origin when it promoted the availability of Mexicans for hire.
Although the statute doesn’t define “specification,” the state noted that the ordinary dictionary meaning of the term is “the act of identifying something precisely.” By identifying the available workers as Mexican, the AG argued, Xing Ying’s advertisements indicated a prohibited specification on the basis of race or national origin.
In its defense, Xing Ying argued that applicable provision of Title VII “should not be construed as a sweeping declaration that outlaws any mention of race” or national origin. The agency also claimed that merely identifying available workers as “Mexican” doesn’t indicate a prohibited specification for workers because “the advertisement is clearly targeted towards potential employers and not workers.”
The court wasn’t persuaded by Xing Ying’s position. The plain language of the statute prohibits any referral for employment indicating any “preference, limitation, specification or discrimination” based on race, national origin, or other categories protected by Title VII.
If, as Xing Ying claimed, the law outlaws only mentions of race or national origin that were plainly “discriminatory,” there would be no need for the other prohibitions the statute enumerates—namely, any “preference,” “limitation,” or “specification.”
The court therefore concluded, based on the “unambiguous language” of the statute, that Title VII forbids “employment agencies from advertising the availability of workers based upon their national origin.”
The court ordered the parties to discuss and present information related to the scope of the state’s requested injunction that would prohibit Xing Ying from violating the statute in the future. State of Illinois v. Xing Ling Employment Agency, No. 15-cv-10235 (N.D. Ill., Mar. 20, 2018).
We hope it goes without saying that any advertisements, recruiting or selection methods, and other activities related to screening and hiring workers should always be neutral with respect to categories protected by Title VII.
While this case involved a peculiar section of Title VII that relates specifically to employment agencies, the law more broadly prohibits all discrimination by covered employers (and labor unions) based on race, color, religion, sex, or national origin.
If you’re covered by Title VII, you should ensure you understand your basic legal obligations when structuring recruiting and hiring programs, let alone before publishing damning ads or job postings that may serve as evidence of discrimination.
This article was written by Steven L. Brenneman of Fox, Swibel, Levin & Carroll, LLP, and an editor of the Illinois Employment Law Letter. He can be reached at firstname.lastname@example.org.