August 1, 2019    |    By

Many laws are in place to prevent employers from discriminating against job candidates during the hiring process; however, many hiring practices that are considered unfair may not actually be illegal. Most companies have a specific recruitment process in place to help avoid discrimination. The problem is that some of these processes may still include areas that could potentially be deemed unfair.

Although not illegal, unfair hiring practices can affect your company’s reputation, which can make it more difficult to attract high-quality candidates in the long run. It can also discourage candidates from taking the job if you offer it to them if they feel like they were misled. It’s why it’s important that you analyze your hiring practices to make sure your hiring process is as fair and balanced as possible.


Illegal Acts Vs. Unfair Acts

It can be difficult to tell the difference between what can simply be considered unfair and what is illegal. Essentially, all illegal hiring practices are unfair, but not all unfair hiring practices are illegal. You can see why this might be confusing. The following detailed breakdown should give you a clearer understanding of what makes a hiring practice illegal versus what makes it simply unfair.

Discrimination: Illegal

To be illegal, a hiring practice must essentially discriminate against a job candidate in a way that violates their civil rights or that violates labor, disability, or other such related laws. Here are a few examples of hiring practices that are considered illegal:

  • Job advertisements – Job advertisements that either encourage or discourage a certain type of job candidate based on race, color, religion, gender, sexual orientation, age, nationality, genetic information, or disability are illegal. For example, you can’t post a job advertisement seeking “recently graduated Christian male,” as this discourages older females with differing religious backgrounds.
  • Recruitment – It is illegal to discriminate in any way through recruitment. An example of this is if you’re asking your current employees to spread the word that you’re looking for new hires but only ask employees who are Asian and only hire Asian employees, it’s a violation of the law.
  • Application and hiring – You cannot refuse to give an application to someone based on any discriminatory practices, nor can you make your hiring decisions based on such practices.
  • Pre-employment inquiries – You cannot ask job candidates for specific information regarding their race, religious affiliation, gender, disabilities, medical history, citizenship, and more as this information could be used to discriminate against them.

Bottom line: none of your hiring practices can encourage or discourage candidates based on their race, religion, sexual orientation, sexual identity, gender, color, nationality, genetic information, disability, or age. Such discrimination is illegal.


Unfair Acts

A hiring practice is considered unfair if you aren’t transparent about the position (such as causing a job candidate to be misinformed about what the position entails or what their pay will be) or if you’re using different criteria to judge one candidate from another (for example, if you don’t hire someone because you don’t think their in-person interview went well, but then you hire someone else instead based solely off their resume). These are acts that are unfair to the job candidates but that do not break any civil rights, disability, or labor laws.


Unclear Or Vague Job Descriptions

You need to be very clear about what position you’re hiring for. A job candidate looking to further their career may assume that you’re offering them a job that’s higher up than what their current position based on your job description when in reality, it’s not. They will not be pleased when they realize they’re moving laterally or if they’re overqualified for the position because it’s actually lower than they assumed it was. This is especially true if you reveal what their salary would be and it’s much lower than what they are being paid at their current place of employment.

If this happens, the candidate is likely going to turn the job down and they’re not going to have a good impression of your company, especially since you not only wasted their time (and yours) but they may feel like you tried to trick them.


Unstructured Interview Process

A structured interview process is important to have in place for both phone interviews and in-person interviews. If you don’t, your recruiter will end up asking job candidates different questions. This results in job candidates being evaluated differently. If you hire someone based on how they answered a certain question that you didn’t even ask another candidate, then you’re using unfair hiring practices.


Only Resume Based Hiring Decision

Hiring an applicant based only on what’s on their resume is a terrible idea. Just because they have the requisite skills and experience needed for the position does not mean that they will be a good fit. It’s important to conduct phone interviews and/or in-person interviews as well. A candidate who may not have as much experience may be a much better fit for the company personality-wise. This is especially important if you’re looking for an employee that needs to interact with their coworkers and with clients.

Additionally, if you’re only making decisions based on resumes, you may be swayed by someone who can make their accomplishments appear more impressive than they are simply as a result of their writing skill.


Physical Attractiveness

It’s unfortunate but recruiters do sometimes base their hiring decisions on the attractiveness of the candidates. For example, if the job is between two candidates who have somewhat similar skill sets and experience, a recruiter may choose the more attractive one. Studies have shown that job candidates who are considered attractive do typically get more callbacks than those that may be considered less attractive.


Current (Employment) Status

It’s not illegal to request the employment status of a job candidate, but it’s generally not a good idea. However, the job candidate may simply tell you on their resume or during an interview. The reason it’s not a good idea to ask is that using that information as a way to discriminate against job candidates for other reasons is a common practice and one that is illegal. If you are using a candidate’s current unemployment as a reason to reject them, it must be consistent with your hiring decisions no matter what their race, religion, gender, age, etc.

Even then, many hiring managers will choose candidates who are currently employed over those that are unemployed, which is a form of discrimination in itself (although not illegal). According to one study, 82 percent of hiring managers confirmed that candidates who are employed are more likely to be hired than those that are not.


Hiring Referrals

While you can certainly look at the referrals provided by your current employees, make an effort to look outside the company as well. Limiting yourself to referrals from current employees will most likely result in the stagnation of the diversity within your organization. Doing so will also limit the range of the network of candidates that you can choose from, thereby potentially lowering the quality of your employees.


Lack Of Analytics

Due diligence is important in all hiring and firing matters. Companies are often too quick on the draw in both cases. When you decide to hire someone, do your due diligence to make sure you’re hiring the right person. Hiring too quickly can result in the use of unfair hiring practices. Taking your time and using analytics is an effective way to help find the right candidates. In the current market,with more jobs available then there are candidates to fill them, it is important to move quickly on qualified candidates. You should still go through all the steps of your hiring process though, just make it a point to move through them as quickly as possible.


Too Many Hoops To Jump Through

It’s standard to require a phone interview and then an in-person interview — possibly even a second in-person interview. Job candidates are aware of this. However, if your interview process is more complex than this, it can be a problem. For example, requiring a handful of phone interviews, several in-person interviews, a test, and another in-person interview, is way too much.

You might think you’re being thorough, but in actuality, you’re being unfair. You’re wasting the time of numerous candidates who think they’re going to get a job offer based on the fact that you keep calling them back. It will also take you much longer than necessary to fill the position if your hiring process is this complicated.


Seeking Consultancy Work

It’s unfair to make a job applicant think that they are interviewing for a position at your company only to turn around and ask them if they are willing to do consultancy work instead. If you’re looking for consultancy work, you need to be upfront about it. You can’t dangle the possibility of a job in front of someone if you never had the intention of hiring in the first place. Not only are you wasting their time, but they may see the practice as dishonest, which–in all fairness–it is.


Steps You Can Take To Maintain Fair Hiring Practices

It should be an absolute priority to prevent illegal hiring practices from taking place; however, it can be a challenge to eliminate all potentially unfair hiring practices. You should have a very structured hiring process in place and your recruiters need to be carefully trained. Many unfair hiring practices can be performed without the intention of ill will towards job candidates, yet they still happen.

One way to avoid potentially unfair hiring practices is by going through a staffing agency. A staffing agency’s sole job is to find and hire qualified job candidates. They will have the processes in place to maintain fair hiring practices, helping you avoid the risk of unfair hiring practices altogether.

If You Don’t Want The Hassles Of The Recruitment Process, Hire Professionals To Do Everything For You!

Make a great first impression at your next job interview.

This blog post is intended for informational purposes only and does not constitute legal advice. No attorney-client relationship is created between the author and reader of this blog post, and its content should not be relied upon as legal advice. Readers are urged to consult legal counsel when seeking legal advice.