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Does This Ad Violate Massachusetts Law?

Posted on

The ABC Store in Anytown is hiring!! Immediate opening for part-time mother’s hours, M-F 8:30am-2:30pm with some Saturdays (as needed). Individual should have good customer service skills, some computer skills, ability to multi-task and handle packages up to 30-40 lbs. Call John Doe at 781-224-2500 or come in to the store @ 15 Lincoln St. Thank you!

Recently, the above ad for part-time help sparked a brouhaha on a local Facebook page. A person took offense to the term “mother’s hours” sparking a debate over whether the term was discriminatory or political correctness had run amok. The aggrieved party claimed that “it sounds discriminatory as in, no consideration for full-time hours for a mother, no seniors, etc. We should be beyond this.”

The term “mother’s hours” is commonly used to refer to part-time positions offering hours during school times, typically 8:30 a.m. to 2:30 p.m. Traditionally, this shift has been worked by women with school-aged children. The phrase itself is legal in Massachusetts and most people understand that the employer is describing a shift, not a desire to hire only mothers. Employers do not violate the law until they refuse to hire an applicant based on their membership in a protected class.

Massachusetts anti-discrimination law is broad. Employers are prohibited from discriminating against prospective employees based on race, religious creed, national origin, ancestry, sex, gender identity, age, disability, mental illness, sexual orientation, active military personnel and genetics. Rejected applicants must be able to show that although they were qualified, the employer refused to hire them because of their membership in a protected class.

Discrimination is permitted in limited circumstances. Employers are allowed to consider specific qualities or attributes, known as bona fide occupational qualifications, when making hiring decisions. These qualities are deemed essential job functions and must be clearly stated in the job advertisement. In the above ad, the potential employee is required to be able to lift packages weighing up to 40 lbs. The employer is entitled to not hire those applicants who cannot lift the requisite amount.

Although the job advertisement complies with the law, a better practice is to list the shift without any qualifiers such as “graveyard,” “swing shift” or “mother’s hours.” Just as the terms police officer, firefighter and mail carrier have been adopted into common parlance, employers should make efforts to draft gender-neutral job postings to avoid any misunderstandings and potential claims by rejected applicants.