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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog

Does Federal Law Prohibit Employment Agencies From Engaging In Discriminatory Advertising?

Picture of Job Agency and potential employees

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits employers from discriminating against employees on the basis of race, color, national origin, sex, or religion.  As explained by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Congress passed Title VII “to ensure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.”

Because employment agencies often refer individuals for employment with an employer who is covered by Title VII, Title VII also prohibits discrimination by employment agencies in the referral process.  Under Title VII, it is unlawful for an employment agency to refuse to refer an individual to an employer because of the individual’s race, color, national origin, sex, or religion.   Thus, for example, Title VII forbids employment agencies from refusing to refer a male applicant for “female” jobs or refusing to refer an African-American applicant because the employer requested only white referrals.

Title VII also prohibits employment agencies from engaging in discriminatory job advertising.  Under Title VII, employment agencies are forbidden from engaging in any advertising indicating any preference, limitation, specification, or discrimination based on race, color, national origin, sex, or religion.  The recent decision by the U.S. District Court for the Northern District of Illinois in State of Illinois v. Xing Ying Employment Agency, No. 15-10235 (N.D. Ill. March 20, 2018) illustrates how Title VII’s ban against discriminatory advertising applies to employment agencies.

Advertisement Identifies Workers Based on National Origin

In that case, the State of Illinois and the Illinois Department of Labor (collectively, State of Illinois) brought suit against several employment agencies and their client restaurants alleging violations of Title VII’s prohibition against discriminatory advertising.  The State of Illinois further alleged that the agencies and restaurants engaged in discriminatory and abusive treatment of Hispanic employees.  Most of the defendants settled, but the Xing Ying Employment Agency (Xing Ying) did not. 

Xing Ying is an unlicensed employment agency located in Chicago.  Xing Ying finds jobs and refers workers into those jobs for a commission.  World Journal is a widely circulated daily Chinese newspaper.  Xing Ying placed daily advertisements in the World Journal from April 2011 until October 2015.  During that time period, Xing Ying’s advertisements contained the phrases “lots of Mexicans” and “honest and sincere (provide the best Mexicans).” 

The State of Illinois claimed that Xing Ying’s advertisement expressed a preference or specification for “Mexicans” in violation of Title VII.  By identifying its available workers as “Mexican” and thereby promoting the availability of “Mexicans” for hire, the State of Illinois argued, Xing Ying’s advertisement indicated a prohibited specification on the basis of race or national origin.  Xing Ying contended that its advertisement did not violate Title VII because Title VII does not “outlaw any mention of race.”  Rather, according to Xing Ying, Title VII only prohibits the “mention of race” when “there are people who are discriminated against and whose interest is adversely affected by race.”   

Employment Agency Engaged In Discriminatory Advertising

In rejecting Xing Ying’s argument, the trial court found that the argument “ignored” the plain language of Title VII.  The express language of Title VII, the trial court explained, prohibits any referral for employment indicating “any preference, limitation, specification or discrimination” based on race or national origin. “If Congress intended to outlaw only mention of race that was plainly ‘discriminatory,” the trial court reasoned, it could have merely prohibited ‘discrimination’ based on race or national origin.” “[I]n prohibiting employment agencies form publishing advertisements indicating any ‘specification’ based on national origin,” the trial court found, “Congress forbade employment agencies from advertising the availability of workers based on their national origin.”  Thus, the trial court concluded, because “Xing Ying advertised the availability of Mexican workers,” Xing Ying engaged “in discriminatory advertising” in violation of Title VII. 

The trial court further explained that by describing the national origin of the workers, Xing Ying’s advertisement “could constitute an impermissible ‘limitation’ of the available workers” in violation of Title VII.   This was so, the trial court reasoned, because if “Xing Ying only placed workers who were ‘Mexican’ or intended to appeal to those employers who preferred to hire ‘Mexican’ workers, the advertisement could indicate an impermissible ‘preference’ for Mexican workers, whether from the perspective of Xing Ying or its prospective clients.” 

Free Consultation With Alachua County Employment Law Attorneys   

Based in Ocala, Florida and representing employees throughout Central Florida, we have extensive experiencing litigating employment discrimination cases.  If you have been discriminated against at work or have questions about an employment agency’s discriminatory employment practices, please contact our office for a free consultation with our Alachua County, Florida employment law lawyers.  Our employee rights law firm takes employment law cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover. 

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