Is your hiring process fair?

Everyone is biased.

And we're all blind to our bias.

Most of the time, these biases are relatively harmless — but during the recruitment process, your bias may lead to unintentional discrimination, and prevent a fantastic candidate from landing their dream job.

Whether you run your hiring process internally, or outsource parts to a recruitment agency, you have to take steps to avoid discrimination and keep the recruitment process fair.

Even if you think you do everything by the book, there's a chance that you could be discriminating against certain groups of applicants without even knowing it.

Today on the RotaCloud blog, we take a close look at discrimination in the hiring process, and how it can occur in even the most ethically minded company.

What do we mean by discrimination?

In this article, we're referring to UK definitions of discrimination.

When most of us think of discrimination, we think of what's called direct discrimination. In recruitment, this occurs when a candidate with a protected characteristic is treated less favourably than another candidate because of their protected characteristic.

At present, there are nine different protected characteristics (read the full list of protected characteristics at Gov.uk) that cover race, sex, age and much more.

Examples of direct discrimination in practice include rejecting a highly qualified candidate because they're pregnant, or not hiring an older worker because of their age. Of course, you may choose not to hire candidates with protected characteristics, but only for reasons that don't relate to these characteristics.

When it comes to direct discrimination based on age, employers can justify this discrimination if there's a good enough business reason for discriminating against a candidate. The employer must be able to show that this decision is proportionate.

Direct discrimination can also occur by perception or association.

Discrimination by perception is when a hiring decision is made based on perceived protected characteristics, even if these perceptions are false. For example, an applicant may have an Arabic name and the employer may reject their application because they assume they are Muslim and won't be comfortable handling pork products at their shop. Even if the candidate isn't Muslim, this still counts as discrimination.

Discrimination by association is when a hiring decision is made based on an applicant's association with individuals or a group with protected characteristics. In recruitment, a candidate might be rejected because the employer finds out they have a disabled child who requires care. Although the candidate doesn't have the protected characteristics, a close third party (their child) does, classing this is discrimination by association.

There are couple of exceptions to discrimination by association and perception: they don't apply to some protected characteristics, namely pregnancy, maternity, and marriage or civil partnership status.

Indirect discrimination

Discrimination also occurs indirectly, where a provision, criterion or practice places candidates with a certain protected characteristic at a disadvantage. In other words, some part of your hiring process (it could be the role's requirements, the placement of the advert, or the application form) damages the chances of applicants with a specific protected characteristic from proceeding and ultimately getting the job.

Indirect discrimination may be intentional or unintentional — and many employers aren't aware that it's happening in their recruitment process.

After all, indirect discrimination occurs even though all applicants are technically treated in the same way.

Examples of indirect discrimination include:

• Requiring candidates to have consecutive years of experience, or x years of experience within the past y years (sex and/or age discrimination)
• Requiring candidates to work certain days even if they can be easily covered by other staff (religious discrimination)
• Requiring candidates to be a certain height (sex or disability discrimination)
• Requiring candidates to hold UK qualifications (GCSEs, A-Levels etc.) with equivalent international qualifications not considered (race discrimination)
• Requiring tests that assess criteria that aren't required for the role (potentially all types of discrimination)
• Requiring candidates to be clean-shaven or wear hats (religious discrimination)

Some of these types of indirect discrimination may seem more justifiable than others — and they are, depending on context.

You are legally allowed to justify this type of discrimination if you can show it's a proportionate (appropriate and necessary) way of achieving a legitimate aim (such as the requirements of the business, or the health and safety of the workforce).

For example, employers can reject candidates if they won't work on certain days if they can show that these shifts are important to the requirements of the business, and that there wouldn't be enough other staff to cover these important shifts consistently.

If you're not sure if your current recruitment process may be indirectly discriminatory, contact a legal expert and look up relevant case law.

Positive Action vs Positive Discrimination

On the flip side, the law allows companies to encourage applications from certain underrepresented or disadvantaged groups. This is called positive action. Positive action might involve using media to target some adverts at specific groups, or including statements in recruitment ads stating that you welcome applications from a specific group.

Employers can also choose to hire candidates from under-represented groups simply because they're part of these groups as long as they're equally qualified for the role as the other remaining candidates.

Positive action isn't the same as positive discrimination. Positive discrimination gives candidates from disadvantaged groups preferential treatment in the recruitment process, regardless of their ability. Favouring candidates in this way remains illegal.

To sum up: positive action can be used to encourage applications from a disadvantaged group, and to make the final hiring decision when the remaining candidates are equally qualified. It can't be used to give disadvantaged groups any preferential treatment elsewhere in the selection process, and applications from non-disadvantaged groups must still be accepted.

"But we don't discriminate!"

We hate to say it, but there's a big chance that you do!

Even the most well-meaning and fair-minded employer holds their own set of biases.

You may have heard this referred to as unconscious or implicit bias. Our biases are shaped by our backgrounds, culture, and own experiences.

Most of the time these biases are fairly harmless, but when they nudge you to choose one candidate over another, you can imagine how they might end up leading you to unintentionally discriminate against certain candidates.

And the bad news is that this takes place all too frequently.

Study after study has shown that unconscious bias affects recruitment decisions.

Research by Moss-Racusin et al. looked at the gender bias amongst various science academics at several universities. Even when applications were randomly assigned a male or female name, the male applications were rated as a significantly more competent (and hireable) than identical female applicants. The hiring managers were unconsciously biased towards male applicants.

It gets worse — the academics also chose higher starting salaries and offered more career mentoring to male candidates. Remember, the applications were identical.

Interestingly, both the male and female academics held a similar bias, showing that unconscious bias doesn't always lead to hiring managers favouring applicants who are most similar to them. Instead, our bias also reflects our cultural stereotypes.

Another classic example of unconscious bias are blind auditions for orchestras. Originally introduced in the 1970s and 80s because of nepotism concerns, musicians auditioning for places in orchestras started to perform behind a curtain to earn their place.

Studies have shown that blind auditions in the final round increased the chance of a female musician being chosen by 33%, and that these auditions account for around 30% of the increase in women in major orchestras between the 70s and 90s.

There's evidence that our bias in recruitment extends to race, too.

A report for the Department for Work and Pensions in 2009 found that candidates with names associated with ethnic minorities had to submit 74% more applications than candidates with white-sounding names before they received a positive response (say, an invitation to an interview).

Understanding the source of unconscious bias

Unconscious bias exists because our brains like to take shortcuts. When your brain judges applicants, it uses names, gender, and other familiar factors to assess them quickly. These types of shortcuts can be extremely useful when you're in a rush, and form an everyday part of our lives, but in recruitment, your brain's quick judgement could lead to you making decisions that discriminate.

Every time you make a quick decision about candidates or follow a gut instinct, there's every chance you could be handing the decision over to your unconscious bias.

Catering to preconceptions

Unconscious bias can be particularly powerful when you're hiring a replacement for an employee who you were disappointed to lose.

When you're looking to fill their role, your ideal new hire would probably be a like-for-like replacement, so that you can continue from where you left off. That new hire would have the same skills, experience, and personality of their predecessor, and slot into your team perfectly.

That mindset is perfectly understandable — but entering the hiring process looking for a direct replacement rather than someone new isn't particularly healthy, and can open the door to discrimination.

You might try to take a balanced approach during the recruitment process itself, but there's no doubt that every candidate you interview you'll compare with their predecessor.

Whether intentionally or unintentionally, you'll favour candidates in the same mould as the employee you're losing. This could include protected characteristics.

At some point in your career as a manager, you might well have discriminated against applicants without even knowing it. That doesn't make you a poor manager — we all have bias — but if you want to boost diversity at your company (and avoid the risk of losing an expensive employment tribunal), it's time to tackle your unconscious bias.

Avoiding Discrimination

Now we'll look at how to keep the recruitment process fair, particularly with unconscious bias in mind.

1. Be aware of your bias

If you've read the previous section of this blog post, you're already halfway there. You can also take tests to learn more about your unconscious bias — these online tests from Harvard cover age, gender, weight, skin tone, race, country and sexuality. If anyone else is involved in the hiring process, talk to them about unconscious bias and the role it can play in hiring decisions. An awareness of unconscious bias is the first step towards countering it.

Of course, once you're aware of the bias it's easy to overcompensate and start giving preferential treatment to groups that you previously were biased against!

2. Review the scope of the role

Look at loosening or changing some of the role requirements to make the job more appealing to a wider range of candidates. In particular, review working hours and see if you could offer more flexible options. Evaluating your rota planning process could also help you provide some flexibility.

3. Adjust where you advertise vacancies

Although it's OK to target a specific audience with your job adverts to some extent, do your best to reach as many demographics as possible. Don't use social networks' targeting options to exclude groups with protected characteristics.

4. Keep track of all applications

Make sure that every application you receive, from whatever source, is fed through to a central system where you can keep track of every applicant's progress. You can pay for an applicant tracking system (ATS) to do this, or do it yourself with a spreadsheet. We don't recommend paying for an ATS unless you're constantly hiring staff.

A central spreadsheet keeps everything in one place, so you can quickly and easily refer back to CVs, application forms, contact details, and everything else relating to candidate applications. This'll be invaluable when you need to make evidence-based hiring decisions.

5. Simplify the application process

Revisit every form, field, and test you require the candidates to fill out. Remove anything that doesn't directly measure the candidate's ability to do the job, and any fields that ask for duplicate information (eg. work experience on application form when it's already listed in the candidate's CV).

6. Make the application process accessible to all

For a start, any application forms must be mobile-friendly. Not only does this widen your potential pool of applicants, it also makes it less frustrating for candidates to apply for the role.

To avoid indirect discrimination against disabled people, offer an alternative way for candidates to submit their applications. For example, you could supply an email address or phone number so that candidates can request the application form on paper, or in Braille. Candidates should also be able to present their responses in a different way, such as verbally, or written on paper.

7. Try blind CVs

One way of almost completely eliminating unconscious bias is by removing names and other personal information from CVs, cover letters and applications. You'll need to ask a third party to scrub this info for you — a recruitment agency could do this, or someone else at your workplace who isn't otherwise involved in recruitment.

8. Avoid using any online assessments that automate decisions

Under new data protection rules, a human must intervene to review an automated decision before it's made. That means you can't use software to automatically sends out emails to unsuccessful candidates immediately after failing an assessment. Instead, review the test results to check the decisions before using the software to send out emails.

9. Make decisions with another member of staff

By involving multiple people in the selection process, you can limit the impact of unconscious bias — particularly if you're from different backgrounds or cultures. You could also ask another employee to review your selection decisions, and see if your reasoning for these decisions is sound, or lacking evidence.

10. Stick to structured interviews

Unstructured interviews can be very effective at determining suitability and fit, but they do run the risk of giving your unconscious bias more fuel. For example, you may find out that a candidate supports the same football team as you, or lives in the same area.

Structured interviews also help you score candidates against the role's requirements more consistently and accurately, making comparisons between candidates relatively easy.

11. Invite candidates to contact you in advance if they require any adjustments to be made at the interview

For example, candidates may require a sign language interpreter or want to check the interview room is accessible by wheelchair.

Disabled candidates may be wary of revealing the nature of their disabilities in advance of the interview, because they may be asked inappropriate or discriminatory questions. Stick to your usual interview script, and only ask questions that relate to the candidate's ability to do the job.

12. Read up on illegal interview questions

Although it's obvious that you can't ask questions like 'Are you pregnant?' or 'How old are you?' at interviews, there is a grey area around questions which indirectly relate to protected characteristics and also the job's requirements.

Here are some common interview scenarios and how to ask questions correctly:

For a job that involves serving alcohol:

Don't ask: How old are you?

Do ask: Are you over 18?

For a job that has mandatory shifts on certain days/at certain times:

Don't ask: Which religious holidays do you practice?

Do ask: What's your weekly availability to work?

For a job that requires heavy lifting:

Don't ask: Do you have any health problems?

Do ask: Heavy lifting is a core requirement of the role. Do you have any health issues that will prevent you from lifting heavy loads on a frequent basis?

For a job that requires candidates to speak a particular language fluently:

Don't ask: What's your first language? Where are you from?

Do ask: Are you fluent in these languages?

13. Be honest and transparent during interviews

This is more about fairness rather than discrimination, but it's still important. Don't string candidates along with promises of an inflated salary if you don't intend to offer it. If your company is struggling, be honest — and explain how you're working to turn things around, as well as the role the new hire to play in that process.

Otherwise, you're wasting their time as well as your own.

14. Score candidates against the person specification, instead of making decisions based on hunches.

Every hiring decision you make should be based on evidence in application forms, CVs, and their interview performance, and how these weigh up against your person spec.

It should be easy to see where candidates fall short and where they compare favourably against other candidates. You must be able to give clear reasons for choosing one candidate over another that have nothing to do with protected characteristics.

15. Check your data to look for signs of sex discrimination

Use your applicant tracking spreadsheet to work out the number of applications you receive from each gender, and how the proportion of applications that proceed to each stage differs by gender.

If you have a reasonable sample size (say, at least 100 applications from each gender), carry out some basic tests to find out if the differences between the genders are significant or if it's down to chance alone (this chi-square test calculator is a good place for stats newbies to start).

You can use these tests to find out if a disproportionate number of male or female applications are being rejected at various stages of the process. This could help you identify sources of bias and then you can work to correct them.

These tests can also look at other protected characteristics if you keep a record of the relevant data.

16. Revisit internal recruitment policies

Always advertise roles internally instead of just selecting interviewees (or making a final promotion decision) without giving anyone else a chance to apply. Although it isn't a legal requirement to advertise roles, following the proper process shows that you're not excluding anyone from applying and genuinely want to hire the best person for the job.

Fairness in Recruitment: Frequently Asked Questions

Q: How can I collect, process, and manage candidates' data under the GDPR?

Now that the GDPR has come into force, there are bigger consequences for companies that misuse personal data. Although there's been a lot of discussion about obtaining consent from individuals to process their data, you don't need to obtain consent for most recruitment purposes. Instead, you can collect data on a legitimate interest basis — i.e. the personal data is necessary for you to manage the recruitment process and decide whether or not to hire each candidate.

Under this condition of processing, however, you should delete the candidate's data as soon as it's no longer required. It's not OK to store rejected candidates' data indefinitely just in case you want to offer them another job 12 months down the line. If you want to do this, you should gain candidates' consent — and give them an easy way to revoke it and have their data deleted when they request it.

Q: What should I do if I suspect a candidate is lying about their experience or qualifications?

This depends on the nature of the lie and the stage in the recruitment process which it occurs. At the interview, first give the candidate the opportunity to clarify anything that seems dubious. They may have made an honest mistake and just got their dates mixed up or made a typo.

If their body language changes when they bring up the subject, prod further. Ask additional questions about this part of their application. For example, if you doubt that the candidate really did work at Google, ask which office they worked in and what kind of projects they worked on. In most instances, the answers to these questions will reveal if they're telling the truth.

When making job offers, make sure that you tell the candidate that the offer is subject to reference and other pre-employment checks. Checking references over the phone is often the best route to take. If you're almost certain the candidate has provided fake references, you can ask for confirmation of information you know is false, such as 'Alex worked in the Manchester office for his first six months, correct?'. It's unlikely these false references will challenge you on this information and you'll be able to catch them in a lie.

If you only find out about a candidate's lie after they've accepted a job offer, and that lie made a significant contribution to your hiring decision, you could fire them for gross misconduct.

Q: What happens if our recruitment agency discriminates?

Even if you haven't ordered the recruiter to favour a certain protected group, you could still be liable if the agency discriminates. If the agency had any kind of authority (express or implied) to discriminate in this way, you could still get into trouble. You have to be able to show that the agency was acting outside your authority. When signing a contract with a recruitment firm, be sure to include a clause about your equal opportunities policy or something that states the agency shouldn't discriminate.

Q: What should I do if a candidate brings up one of their protected characteristics at the interview?

In most cases, you should do you best to move on from the remark and go back to your planned questions. Don't take any notes or refer to their remark later in the interview. The only exception is if the candidate has mentioned this characteristic because they feel it might affect their ability to do the job. In this case, it's OK to talk more about it within the context of the role.

Q: Can a candidate be rejected for not speaking English well?

Yes, but only if you can justify it by showing how it is a proportionate means of achieving a legitimate aim.  You probably can't justify rejecting candidates on this basis if the vacancy is for a role that isn't customer or client-facing.

Q: Candidates' social media profiles are viewable by the general public — does that mean they're fair game to access in the screening process?

Yes, but you must still be aware that viewing this information significantly increases the chance that you'll be accused of discrimination. It may be worth looking only at professional social media accounts (LinkedIn or similar), or holding off altogether if you don't want to take any risks.

Q: When should we take positive action?

It's up to you. Generally, public sector organisations take positive action to boost diversity (and gain all the benefits that brings), which can be especially important for key services such as the police.

Q: How do positive action tiebreakers work in practice?

Under the rules, you can choose a candidate from a disadvantaged or underrepresented group over another candidate if they are 'of equal merit'. This situation won't occur very often, but when it does, it's absolutely vital that you show the evidence behind your decision. You have to be able to explain how the candidates are of equal merit, otherwise you could be found guilty of positive discrimination.

Q: Can we send out pre-employment health questionnaires?

No. Pre-employment health questionnaires are no longer legal. You can, however, ask candidates if they have any health issues which will prevent them from completing core aspects of the role.

You are allowed to send out a health questionnaire once a job offer has been made. You must then make reasonable adjustments if it turns out the successful candidate has a health issue that may affect their performance. If you can't make any reasonable adjustments, you can rescind the job offer.

Final Thoughts

There's no doubt that discrimination is a difficult recruitment topic to process. Admitting that you probably have some form of unconscious bias is difficult, and countering that bias can be even more a challenge.

If there's one takeaway from this article, it's this: document everything during the recruitment process. If you've got the evidence to back up every decision you make, you'll be in a strong position during any discrimination dispute that might arise.

Remember: this article isn't legal advice - just general information. Please consult a legal professional for specific advice.