Unfair hiring practices: 12 examples and how to avoid them

Two equally capable candidates apply for the same role, but only one gets an interview because of a school name, a career gap or a gut feeling. Unfair hiring practices are recruiting and selection habits that judge candidates on something other than their ability to do the job.

Some of these habits are illegal discrimination, but many more are legal and still shut out qualified people. Below are 12 examples in the order a candidate meets them, which ones break the law, and a fix for each.

TL;DR:

• Unfair hiring practices judge candidates on anything other than their ability to do the job. Some are illegal discrimination; many are legal but still shut out qualified people.
• Most problems sit in the job ad, the screening rules and the interview format, not in one biased person.
• Common examples include unneeded requirements, blanket criminal record bans, unaudited AI screening, unstructured "culture fit" interviews, salary history questions and ghosting.
• SHRM reported that 67% of job seekers were ghosted after an interview, rising to 78% of candidates from historically underrepresented groups.
• The EEOC received 88,531 new discrimination charges in fiscal year 2024, up 9% on the year before.
• Use the 80% rule: if a group's selection rate is below four-fifths of the highest group's rate, that step needs a closer look.
• Screen with a job-related skills test first, structure every interview, and audit pass rates by group at each stage every quarter.

What are unfair hiring practices?

Unfair hiring practices are any part of the hiring process that gives some candidates a worse chance for reasons unrelated to the job. That covers open discrimination, such as rejecting someone because of age or religion, and quieter problems, such as vague criteria, shortcuts for insiders or tests that measure the wrong thing.

The EEOC's list of prohibited employment practices shows how wide the net is. US law covers job ads, recruitment methods, application and hiring decisions, referrals, pre-employment questions and accommodations for disability, pregnancy and religion, not just the final yes or no.

A useful way to think about it: a practice is unfair when two equally capable people go through your process and get different results because of who they are, who they know or how your team happened to feel that day. The common types of hiring bias are usually where that starts.

Why do unfair hiring practices matter for employers?

Unfair hiring practices matter because they create legal exposure, shrink the talent pool and damage the employer brand at the same time. The cost rarely shows up in one place, which is why many teams underestimate it.

• Legal risk: According to the EEOC's fiscal year 2024 enforcement data, the agency received 88,531 new discrimination charges, up 9% on the year before. Hiring claims are a part of that total, and a single pattern can become a class action.
• Lost talent: Requirements the job does not need, or a process that rewards connections, filter out qualified people before anyone reads their work.
• Brand damage: Candidates talk. SHRM's report on Greenhouse candidate research found that 67% of job seekers had been ghosted after an interview, rising to 78% of candidates from historically underrepresented groups compared with 62% of white candidates.
• Worse hires: A process that measures familiarity instead of skill picks the candidate who interviews well, not the one who performs well.

Common examples of unfair hiring practices

The most common examples of unfair hiring practices start long before the interview. Across the teams we work with, most problems sit in the job ad, the screening rules and the interview format rather than in one biased person.

Here are 12 examples, in the order a candidate meets them.

1. Exclusionary job ads

Job ads that ask for "digital natives", "recent graduates" or "native English speakers" signal an age or national origin preference. Gendered wording and long lists of nice-to-have traits also put off qualified applicants.

Fix: list the outcomes of the role and the must-have skills only. A blind job advert strips out the signals that do not matter.

2. Requirements the job does not need

Degree rules for roles that do not use the degree, years-of-experience floors, height or weight limits and residency rules all screen people out. Height, weight, physical agility and residency requirements can hit women, older applicants or certain racial groups harder, according to the EEOC.

The employer must be able to show these requirements are needed for the job.

Fix: for every requirement, write down the task in the job that needs it. If no task needs it, drop it.

3. Referral, nepotism and walk-in shortcuts

Referrals are not unfair in themselves. The problem starts when friends, relatives or walk-ins skip the screening steps everyone else goes through, or when word of mouth is the only way roles get filled.

An anti-nepotism policy sets the rules before a conflict comes up.

Fix: let referrals in at the top of the funnel, then put every candidate through the same steps and the same scoring.

4. Inaccessible applications

Timed tests with no option for extra time, video-only interviews, applications that do not work on a phone and forms that break with a screen reader all shut out candidates with disabilities. US and UK law both require reasonable adjustments for applicants.

Fix: tell every candidate how to request an accommodation before the first step, and test your own application flow on a phone.

5. Resume triage on names, schools and gaps

A quick skim of resumes rewards familiar names, well-known universities and unbroken work histories. Career gaps often reflect caregiving, illness or layoffs, not ability.

A few places, including New York City, also protect unemployment status.

Fix: screen on job-relevant evidence first. Blind hiring and a short skills test before the resume review both cut the weight of these signals.

6. Blanket criminal record exclusions

A rule that rejects everyone with a conviction is likely to be discriminatory, according to the EEOC's guidance on arrest and conviction records, because it screens out some racial groups at much higher rates. Employers also cannot refuse to hire someone simply because of an arrest.

Many US states and cities also limit when the question can be asked.

Fix: look at the nature of the offence, how long ago it was and what the job involves, and ask about records later in the process.

7. Unaudited AI screening

AI tools that rank resumes or score interviews learn from past decisions. If those decisions were biased, the tool repeats them at scale, and the employer is still responsible for the outcome.

This is the newest example on the list, and the one most older guides miss. The AI section below covers the rules.

Fix: use tools that explain each score, audit results by group and keep a person in charge of every rejection.

8. Tests not tied to the job

General knowledge quizzes, culturally loaded questions or a coding test for a role that never writes code all measure the wrong thing. US law requires that tests with an adverse effect be job-related.

Fix: build each assessment from the job description and check whether pass rates differ by group.

9. Unstructured interviews and "culture fit"

When every interviewer asks different questions and judges "fit" by feel, the result reflects the interviewer more than the candidate. "Culture fit" often becomes a polite name for "like us".

Fix: use structured interviews with the same questions for every candidate and an interview scorecard that defines a good answer in advance.

10. Personal or illegal interview questions

Questions about age, marriage, children, pregnancy plans, religion, health or where a candidate's family is from have no place in an interview. In the US, disability and medical questions are banned before a job offer.

Fix: give interviewers a written list of approved questions and a short list of topics to avoid.

11. Salary history questions

Asking what a candidate earned before carries old pay gaps into the new offer. California, New York and Colorado are among the US states that ban the question, and the EU Pay Transparency Directive bars employers from asking about pay history.

Fix: publish a pay range and ask about expectations instead. The guide to pay transparency explains how ranges work.

12. Ghosting and no feedback

Leaving candidates without an answer is not illegal, but it is unfair, and it hits some groups harder than others, as the SHRM data above shows. Silence also makes rejected candidates more likely to assume the worst about why.

Fix: set a reply deadline for every stage and send a decision to everyone who interviewed. See how to deal with candidate ghosting from both sides.

Pro tip: Pick the three examples above that you recognise in your own process and fix those first. Most teams find two of them sit in the job ad and the first screen.

Which unfair hiring practices are illegal?

Unfair hiring practices become illegal when they treat people differently because of a protected characteristic, or when a neutral rule screens out a protected group and the employer cannot show the rule is needed for the job. Protected characteristics depend on where you hire.

• United States: race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age 40 and over, disability and genetic information, under Title VII, the ADEA, the ADA and GINA. Many states add more.
• United Kingdom: the nine protected characteristics in the Equality Act 2010, including age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
• European Union: equal treatment directives cover similar grounds, and the pay transparency rules add duties on salary questions and pay ranges.

Laws change and vary by state and country, so treat this table as a starting point and check with employment counsel for your locations. The disparate impact glossary entry explains the second route to liability in more detail.

What is the 80% rule in hiring?

The 80% rule in hiring, also called the four-fifths rule, is a quick test for adverse impact. Under the US Uniform Guidelines on Employee Selection Procedures, a selection rate below four-fifths of the highest group's rate is generally treated as evidence of adverse impact.

Here is how the maths works for one screening step:

1. Group A: 60 of 120 applicants pass, a selection rate of 50%.
2. Group B: 28 of 80 applicants pass, a selection rate of 35%.
3. Divide the lower rate by the higher one: 35 / 50 = 0.70, or 70%.
4. 70% is below 80%, so the step needs a closer look.

A result under 80% is a warning sign, not proof of discrimination. Small groups can swing the numbers, so look at the trend across several hiring cycles.

Run the check per stage, because a fair final hiring rate can hide one biased step in the middle.

How can AI screening create unfair hiring practices?

AI screening creates unfair hiring practices when a model learns from biased past decisions, uses proxies for protected characteristics, such as postcode or school, or rejects people without anyone able to explain why. Regulators now treat this as the employer's problem, not the vendor's.

• New York City: under Local Law 144, employers using an automated employment decision tool must have it bias-audited within a year before use, publish a summary of the results and tell candidates at least 10 business days before the tool is used. Enforcement began on 5 July 2023.
• European Union: the EU AI Act lists AI used to place job ads, filter applications and evaluate candidates as high-risk, which brings duties on risk management, human oversight and record keeping.
• Illinois: state rules already cover AI analysis of video interviews, and the Illinois Human Rights Act now bars employers from using AI in ways that discriminate.

Before buying an AI screening tool, ask the vendor these four questions:

• Has the tool had an independent bias audit, and when?
• Can it show why each candidate got their score?
• Can you turn off auto-reject?
• Can you export results by stage to run your own 80% rule check?

How do you avoid unfair hiring practices?

Hiring teams avoid unfair hiring practices by deciding what good looks like before they meet any candidate, measuring every candidate the same way, and checking the results by group. In practice that comes down to six steps.

1. Write the job around tasks: List the five to eight tasks that define success, then derive the skills and requirements from them.
2. Clean up the job ad: Remove requirements no task needs and any wording that signals a preference.
3. Screen on skills first: Use a short, job-related skills test or work sample before the resume review, so every applicant gets the same first look.
4. Structure every interview: Same questions, same order, a scoring rubric and notes written before the panel discusses the candidate.
5. Audit by stage every quarter: Pull pass rates by group for each step and run the 80% rule. Fix or justify any step that falls below it.
6. Close the loop with candidates: Publish timelines, offer accommodations up front and send every interviewed candidate a decision.

We have seen teams make the biggest gains from steps 3 and 5: once every candidate takes the same job-related test, the team has the data to prove the process is fair, and the audit stops being guesswork.

Key takeaway: Fairness is a process you can measure, not a value you declare. If you cannot show pass rates by stage, you cannot show your hiring is fair.

What should candidates do if they face unfair hiring practices?

Candidates who face unfair hiring practices should write down what happened, when and who was involved, keep the job ad and every message, and then decide whether to raise it with the employer or a regulator. A clear record is the main way people prove unfair hiring practices later.

In the US, a candidate can file a charge with the EEOC, usually within 180 days of the event, or 300 days where a state or local agency enforces a similar law. In the UK, the candidate contacts Acas for early conciliation before bringing an employment tribunal claim, normally within three months less one day.

Whether a case is worth suing over depends on the facts, so a free consultation with an employment lawyer or a union rep is the usual next step.

For employers, this is one more reason to keep scorecards and notes for every candidate. A documented, consistent process is the best answer to a complaint.

How does Testlify support fair hiring?

Testlify supports fair hiring by putting the same job-related assessment in front of every candidate before anyone reads a resume. Hiring teams pick from 3,500+ tests or build one from the job description, run structured AI interviews that score every response against the same criteria, and keep a person in charge of each decision with explainable results.

Testlify had its AI matching model checked in a third-party NYC Local Law 144 bias audit, completed on June 16, 2023, and assessments run in 15+ languages, which helps when you hire across regions. Browse the test library to see the skills tests by role, or read more on the future of fair hiring.

Ready to run a fairer process? Book a demo to see how Testlify puts the same job-related assessment in front of every candidate.

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