Author:George Rutherglen

Section 704(b) generally prohibits discrimination in advertising for jobs.[409] Because it regulates the press, section 704(b) raises questions under the First Amendment, but these are easily resolved. If the underlying activity can be prohibited-such as selling narcotics-then advertisements for the activity can be prohibited also. Accordingly, the Supreme Court has readily upheld statutory prohibitions against discrimination in "help wanted" advertising.[410]

Section 704(b) does raise a difficult issue of standing, however.

The individuals harmed by advertising in violation of section 704(b) are only those who have been deterred from applying for the job advertised. Those who applied for the job, even if they were rejected, were not harmed by the advertisement, even if they suffered discrimination in hiring. By definition, the latter individuals applied for the job despite the advertisement. Nevertheless only those least likely to...

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