How to Avoid Unfair Recruiting Practices and Discrimination

Recruiting is a tricky business. There are many different ways it can go wrong, and every person out there has blind spots to some of them. Some might mean not knowing enough about a subject to miss the characteristics indicative of a great candidate. Others are worse, like relying on implicit bias and implementing accidental discrimination in your hiring practices.

“I didn’t realize” isn’t a valid defense against unfair recruiting practices or discrimination. Not putting thought into your hiring practices is a great way to ensure that you end up with a sub-par workforce.

How can you put oversight into practice and ensure that you’re eliminating as many sources of unfair hiring, discrimination, and adverse impact as possible? Here’s a guide on what to avoid.

Understand Protected Classes and Characteristics

The first thing to do is recognize that there are laws and regulations about hiring. Many protections are designed to apply fairer treatment across the board, typically protecting specific characteristics. By removing these characteristics from consideration, you remove the option to discriminate because of them. You can’t make a hiring decision influenced by a candidate’s race if you don’t know their race, after all.

So, what are the protected classes?

1. Sex and Gender. Some states also add transgender status as a protected class, and all employers should follow suit even if it’s not legally required.

2. Pregnancy, Childbirth, and Related. In practice, this ends up being gender discrimination through another lens.

3. Race. Racism and racial bigotry are some of the most prominent forms of discrimination, and many techniques are available for avoiding it, some of which we’ll discuss later.

4. Nationality or Origin. Discrimination along with nationality is closely linked to racism and thus is also a protected characteristic.

5. Skin Color. Again, a form of racial discrimination, most typically.

6. Religion. Discrimination against religious practices is prohibited.

7. Age. Various laws apply to age in hiring, including child labor laws, but age discrimination is specifically for people over 40 years old.

8. Disability. There are thousands of small ways disabled applicants get discriminated against in hiring, and many of them are easy to avoid if you know what to look for.

9. Veteran Status. A relatively recent addition to anti-discrimination laws; this protects veterans and active service members.

10. Genetic Information. You cannot require or make decisions based on the results of any genetic test, including simple ones like Ancestry.com results.

Additionally, many states have more protections than the federal-level protections listed above. These can include creed, code of ethics, political ideology, gender identity, sexual orientation, and more.

In a sense, it’s easier to say “make decisions based on education, skills, and experience, and nothing else” than it is to list all of the protected categories. Remember, every category on this list is there because of high-profile discrimination successfully fought in courts. Don’t do something that can make your company the next prominent example.

So, what specific practices might sound tempting but should be avoided?

Maintain an Accurate Job Description

Your job description is the core of your hiring process. It attracts candidates, allows them to self-filter, and gives you a framework to apply further filtering. To that end, your job description must be accurate.

Unfair hiring practices include:

1. Writing an overly strict job description. This practice can cause candidates to self-select in a biased way, particularly along gender lines.

2. Writing a job description for a job that does not exist, with the intent of harvesting resumes for other purposes. This practice is disingenuous and unethical, though not overtly discriminatory.

3. Changing the job description in the middle of the hiring process. Many companies get in trouble for picking a candidate that doesn’t meet the job description, then changing the description to fit the new candidate, disregarding more qualified applicants. This often ties into nepotism or other forms of unethical treatment.

4. Altering the job description to be inaccurate. Writing deceptive changes into a job description to attract candidates who otherwise wouldn’t apply is considered unethical. A primary example is a highly inflated salary range (the top end of which would never be signed).

In general, the job description should be as accurate as possible and remain unchanged from the start of the hiring process to the end. If you need to make significant changes to the job posting, take it down and create a new one instead. Just make sure not to do this to specifically disregard some applicants and hire someone else.

Beware Exploitative Recruiter Tactics

Many companies hire recruiters to handle their hiring. These recruiters act as middlemen and service providers, and they can provide a valuable service to their clients. However, they may also use exploitative or underhanded techniques that can, at best, be considered unethical.

At worst, they can be labeled discriminatory. Examples of such methods include:

1. Altering a candidate’s resume, either to make them appear better or worse than they are. These alterations are often meant to game the system of an ATS but may result in bias for whoever the recruiter wants to pick.

2. Using “expiring offers.” Job offers typically do not expire unless your job is genuinely on a time limit and needs to get filled ASAP. If a recruiter is setting “take it or leave it” offers to pressure candidates to decide, it can be considered an unfair hiring practice.

3. Soliciting money from candidates. Good recruiters get paid on commission based on the contracts they fill successfully. If they solicit money from their candidates or applicants, they often suppress the best candidates, who know better than to pay.

4. Undermining existing employers. If a recruiter is targeting passive candidates, some might be tempted to spread unfounded rumors (“I heard they’re looking at bankruptcy proceedings, how do you feel about your job?“) to undermine a sense of confidence and stability in the candidate and encourage them to move. Again, this is considered unfair hiring.

5. Not disclosing themselves as a recruiter. Some recruiters will claim that they’re HR employees, hiring managers, or have a personal and direct connection to the hiring decision-makers for their companies, and on this pretense, try to convince candidates they have a better chance. It’s called “rusing,” and it’s unfair and unethical.

Working with a recruiter is not a bad thing, but you need to make sure your recruiters are on the same page and that they have worked to minimize bias and unfair practices in their processes.

Seek to Minimize Unconscious Bias

Unconscious bias is, in a way, the opposite of overt bigotry. It’s implicit and fundamental, often hard to detect, yet still discriminatory.

For example, say you are hiring for an engineer position. You have two candidates who are, on paper, identical. They graduated with the same GPA and degree from the same institution. They have the same amount of experience and have listed the same skills. The only difference between them is that one is male and one is female. Which one do you hire?

Implicit bias might make you think the male is the better candidate because there’s a significant gender disparity in engineering, skewing more toward males. You’re more used to seeing male engineers, and so the male candidate “better fits” the role, even if they’re both perfectly qualified on paper.

Of course, in reality, this scenario will rarely happen. No two candidates are ever perfectly identical save for one protected characteristic.

But, this is how unconscious bias sneaks in; your personal experience indicates a trend that you unconsciously follow.

How can you minimize unconscious bias?

1. Recognize that you have bias. No human being alive is without bias; this is why many hiring decisions should be made by teams, preferably diverse teams.

2. Use technology where applicable. For example, anonymizing resumes can strip names, which usually bring biased connotations with them.

3. Invest in training. Today, many organizations provide training on recognizing and fighting bias in the workplace; invest in using this training throughout your organization, including management.

Unconscious bias can never be entirely removed, but it can be mitigated.

Be Cautious with Technology

Many modern applicant tracking systems claim to use machine learning, pattern matching, and advanced AI to help filter and pick the best candidates.

The trouble is, that technology is itself not unbiased.

As a simple example, a neural network will take a data set and look for patterns within it. It might take a look at a group of highly successful people (such as, say, the list of Fortune 500 CEOs) and then look for those characteristics in the candidate pool. It will then select candidates who meet those characteristics.

Unfortunately, that sample pool might not be representative in a positive way. For example, in the Fortune 500 list, there is a higher concentration of men named “David” than women.

Thus, the AI might choose a man named David over a more qualified woman. To us, this doesn’t sound sensible. To an AI, it’s a pattern, and all patterns are as valid as any pattern without other validation.

This is proven time and time again with machine learning and AI technology. They can be helpful, but they reflect the biases inherent in the data fed to them and the people designing them. This is an emerging field of study, and it’s why reliance on machine learning without validation is likely to enable and reinforce bias in your hiring practices.

So: you can use modern technology, but be aware that it can be biased, and watch for those biases to appear.

Set Diversity Goals

Diversity is essential in hiring, not just in minimizing bias but in maximizing productivity and creativity in the workplace. Thus, hiring more diverse candidates will benefit the organization.

However, this must be done carefully.

Remember: employees should not be hired because of their diverse characteristics alone; they must still meet the criteria outlined in the job description. This helps ensure that they’re a productive team member and not a checkbox to avoid discrimination suits down the line.

Remain Vigilant

Many sources of bias are self-evident, and many unfair hiring practices are clearly unfair. They work simply because the people in charge don’t notice or don’t care to look for them.

Thus, the number one thing you can do to minimize unfair hiring practices and discrimination in your hiring is to remain vigilant.

With the proper safeguards and reviews in place, you can work to reduce any instances of unfair hiring that may sneak into your process.