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Recruiting and Hiring Best Practices for Employers

Employers face discrimination claims when hiring decisions appear to rely on subjective judgments, inconsistent screening, or criteria unrelated to the job. Federal law prohibits employers from considering race, sex, religion, national origin, age, or disability when evaluating applicants, and several states impose additional restrictions on how salary history, criminal records, and other personal information may be used in the hiring process.

The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces anti-discrimination laws, regularly investigates claims tied to hiring practices. Employers who cannot show that their decisions were based on job-related criteria may face mediation, policy changes, or litigation. In 2023, the EEOC received over 19,000 hiring-related charges and reported nearly $130 million in non-litigation resolutions.

Strong hiring practices improve workforce quality and help avoid claims tied to discrimination, bias, or improper screening methods.

Writing Accurate, Lawful, and Inclusive Job Postings

Align Job Descriptions with the Role

Job descriptions shape the applicant pool and serve as the baseline for evaluating candidates. When postings are vague or misaligned with the position’s requirements, they can limit access to qualified applicants and raise the risk of biased decision-making. Descriptions that reflect only the necessary skills and responsibilities are easier to defend if a hiring decision is challenged.

Focus on duties the employee will be expected to perform
List only qualifications necessary for success in the role
Avoid subjective language like “must be a self-starter”
Connect every requirement to a measurable task or responsibility
Review descriptions regularly to keep them current

Avoid Language That Can Trigger Discrimination Claims

Coded or subjective language in job postings can expose employers to legal claims. Terms like “recent graduate” or “high energy” may suggest age bias, while words like “able-bodied” can deter applicants with disabilities. Seemingly neutral requirements may also violate the law if they disproportionately exclude protected groups.

Eliminate terms that suggest preference based on age, gender, or physical condition
Avoid references to traits not tied to performance
Refrain from listing citizenship or fluency requirements unless legally supported
Use clear, measurable qualifications tied to the job
Review postings for language that may discourage applicants from protected groups

Salary Transparency and Pay History Bans

Many states now require pay ranges in job postings. Others prohibit employers from asking about salary history or using prior compensation to set pay. Laws like these are intended to promote pay equity and reduce wage disparities that persist across gender, race, and other protected categories.

California, Colorado, Washington, and New York require pay ranges in postings
Illinois and D.C. prohibit salary history inquiries in most hiring situations
Some states restrict third-party recruiters from requesting prior pay
Use a consistent pay range based on experience and market data
Document the factors used to determine offers

Expanding Recruitment Efforts Without Compromising Consistency

Broaden Your Candidate Pipeline

Hiring practices that rely too heavily on referrals, internal promotions, or a narrow set of recruiting channels can limit access for applicants outside those circles. This can result in a workforce that lacks diversity and raise claims under anti-discrimination laws. Expanding outreach helps employers reach a broader pool of qualified candidates.

Advertise beyond a single job board or recruiting platform
Use outreach that reaches diverse educational and industry backgrounds
Include community organizations and workforce development groups
Track applicant sources to identify narrow or underperforming channels

Referral Programs and Alumni Hiring: What to Watch

Referral programs and alumni networks can help identify candidates with relevant experience, but relying on them too heavily limits access to applicants outside those circles. When employers prioritize familiarity over qualifications, they increase the risk of discrimination claims tied to access or favoritism.

Evaluate referrals and alumni using the same standards as other applicants
Publicly post all openings, even when considering internal or referral candidates
Document hiring decisions based on qualifications
Review referral patterns for signs of limited access
Avoid favoring friends, relatives, or internal connections without comparison to other qualified applicants

Employer Branding and Candidate Experience

Applicants form opinions about an employer early in the hiring process. Unclear postings, poor communication, or inconsistent follow-up can discourage strong candidates and damage the organization’s reputation.

Keep the careers page accurate and up to date
Provide clear instructions and realistic timelines
Communicate with candidates consistently—even those not selected
Train staff to engage professionally with all applicants
Review candidate feedback to identify process issues

Avoiding Bias and Discrimination in Screening

Apply Consistent Criteria in Resume Reviews

Hiring decisions can be difficult to defend when different applicants are held to different standards. Inconsistent screening allows subjective preferences to influence outcomes and increases the risk of discrimination claims. Employers reduce this risk when they identify job-related criteria in advance and apply them uniformly across all resumes.

Use a checklist or rubric based on the job description
Focus on measurable factors like relevant experience and certifications
Avoid assumptions tied to gaps in employment or nontraditional backgrounds
Evaluate all applicants—including referrals—using the same process
Keep written records explaining why candidates advanced or were declined

Application Content That Creates Legal Risk

Employment applications that ask for unnecessary personal information can expose employers to liability. Questions about age, marital status, health, or family obligations may reveal protected characteristics and suggest that these factors influenced the hiring decision.

Remove questions about date of birth or graduation year
Do not ask about marital status, childcare arrangements, or pregnancy
Avoid any inquiry into disability or medical history
Exclude salary history fields where prohibited
Delay background check questions until legally permitted
Review applications regularly for compliance with current laws

Criminal and Credit Background Screening

Many states limit when and how employers can consider criminal history. “Ban the box” laws prohibit early inquiries and may require an individualized assessment of any conviction. Credit checks are also restricted and generally allowed only for roles involving financial responsibility.

Delay criminal history questions until after a conditional offer, where required
Review state-specific laws before conducting background checks
Avoid blanket disqualifications based on conviction history
Conduct individualized assessments that consider relevance and timing
Only request credit reports for roles involving financial duties
Provide notice and obtain written consent before running background or credit checks

Interview Practices That Minimize Risk

Structured Interviews and Scoring Systems

Unstructured interviews are difficult to defend. When candidates are asked different questions or evaluated inconsistently, employers may not be able to show that the process was fair. Structured interviews reduce that risk.

Use a consistent set of questions tied to the job’s responsibilities
Score answers using a rubric with defined benchmarks
Avoid casual conversations that may lead to bias or irrelevant discussion
Include job-related scenarios to assess how candidates respond to real tasks
Record how each response was evaluated and scored
Train interviewers to follow the structure and avoid off-script questions

Topics Interviewers Should Avoid Entirely

Some questions should never be asked during an interview. For example, questions about age, religion, disability, family status, or national origin may reveal protected information that should not be considered in hiring decisions. Even casual comments or small talk can create problems if they suggest bias or lead to inconsistent treatment.

Do not ask about age, birthdate, or graduation year
Avoid questions about marital status, pregnancy, or children
Refrain from discussing religion, politics, or cultural background
Do not inquire about disabilities or medical history
Avoid topics involving citizenship or immigration status unless legally required
Redirect conversations if a candidate shares protected information voluntarily
Do not reject applicants because they previously filed complaints or requested accommodations

Candidate Testing, Assessments, and Digital Screening Tools

Skills-Based Hiring: What It Looks Like Legally

Skills-based hiring focuses on what a candidate can do, not where they’ve worked or studied. This approach can reduce bias and improve defensibility when skills are defined and applied consistently.

Identify job-related skills before screening applicants
Use assessments that reflect real tasks from the role
Do not require degrees unless necessary for the job
Assess whether tests may disproportionately exclude protected groups
Document how skills were defined, measured, and used in selection

Using Background Check Vendors Legally Under the FCRA

Employers that use third-party vendors to conduct background checks are subject to the Fair Credit Reporting Act (FCRA), a federal law that requires specific disclosures, authorizations, and notices throughout the screening process. FCRA-compliant background checks should include the following actions:

Provide a standalone disclosure explaining the check
Obtain written consent before requesting the report
Send a pre-adverse action notice before making a final decision
Include a copy of the report and a summary of rights
Allow time for the applicant to respond
If moving forward, send a final adverse action notice

Algorithmic Hiring Tools and AI in Recruiting

Employers that use AI tools to screen applicants are responsible for how those tools affect hiring outcomes. Automated systems that score resumes, rank candidates, or analyze interviews may unintentionally screen out applicants based on race, disability, or other protected traits.

Understand how the tool evaluates applicants and whether it creates bias
Avoid systems that rely on facial analysis, tone, or other unverifiable metrics
Provide accommodations if a candidate cannot engage with the tool as designed
Monitor results for patterns that suggest discriminatory impact
Review vendor documentation and stay current on state and local requirements

Inclusive Hiring Practices: Staying Compliant While Expanding Access

In 2025, federal policy changes have increased scrutiny of hiring practices linked to demographic considerations. For private employers, the focus remains on broadening access—without allowing race, gender, or other protected traits to influence selection decisions. Hiring should be based on qualifications. That doesn’t mean outreach and process improvements are off the table. But intent and execution matter.

Employers can lawfully improve access by widening their recruitment efforts and removing unnecessary barriers. What they can’t do is shift from expanding opportunity to controlling outcomes based on demographic goals.

List open positions on platforms that reach a range of communities, not just industry standard job boards
Drop degree or certification requirements unless the role clearly demands them
Evaluate all candidates using the same scoring system and criteria
Keep demographic data out of the hands of decision-makers
Review applicant flow and outreach data to identify gaps—not to adjust selections

What Not to Do

Programs that reserve interviews or roles for certain groups, apply demographic targets, or shape shortlists based on identity can trigger legal claims. Even when intentions are positive, decisions influenced by race, gender, or similar factors carry risk—especially under current federal policy.

Don’t set hiring goals based on race, gender, or other protected traits
Don’t limit candidate pools to match diversity targets
Don’t give preference to anyone because of perceived diversity value

Training and Oversight for Hiring Teams

Hiring managers don’t need to manage metrics. They need to stick to qualifications. That only works when they understand the legal boundaries of inclusive hiring. Training should clarify what’s lawful, what’s not, and how to evaluate every candidate the same way.

Train interviewers to spot bias in how they interpret resumes and responses
Use real examples to explain what crosses the line
Require written justification for all hiring decisions
Follow up with periodic reviews to make sure the process is being followed

State-Specific Hiring Rules: What to Know if You Hire in DC, IL, CA, MI, or OH

Many states expand anti-discrimination protections or impose additional hiring rules. Employers with multistate operations need to track how these laws differ.

California, Illinois, New York, and Washington require salary ranges in job postings
D.C. and Illinois ban salary history questions in most private-sector hiring
Illinois and California require individualized assessments for criminal history
Michigan prohibits discrimination based on height, weight, and marital status
Ohio includes military status and ancestry among protected traits
New York City requires audits and disclosures for automated hiring tools

Maintaining Compliance and Legal Defense Post-Hire

Documentation, Retention, and Audit Readiness

If a hiring decision is challenged, documentation is the employer’s first line of defense. Without records showing how and why a candidate was selected or rejected, it becomes harder to demonstrate that the process was fair and consistent.

Keep applications, interview notes, and selection records for at least one year
Retain records longer if a complaint is filed or the applicant is hired
Limit access to hiring records to authorized personnel
Document decisions using objective, written criteria
Review recordkeeping practices for completeness and consistency

Ongoing Monitoring of Hiring Practices

Even well-written policies can break down without regular review. Employers should confirm that hiring procedures are being followed and that outcomes remain aligned with company standards and legal requirements.

Review evaluation records across departments for consistency
Monitor trends to identify potential bias or compliance issues
Confirm that structured processes are still in use
Adjust training or forms based on internal feedback or legal updates

Building a Legally Defensible Hiring Process

Hiring decisions affect legal exposure, team performance, and public perception. Employers that apply clear, consistent standards are more likely to make sound decisions—and less likely to face claims tied to discrimination, bias, or flawed screening practices.

A fair hiring process is not just about avoiding risk. It’s also about building a workforce that reflects the organization's needs, values, and long-term goals.

Get Guidance on Compliant Hiring Practices

Conn Maciel Carey’s national Labor & Employment Practice Group advises employers on how to develop, audit, and defend compliant hiring policies. To speak with an attorney, call (202) 909-2730 or send us an email through our contact page.

This article is for informational purposes only and does not constitute legal advice. While we strive to ensure accuracy, laws and regulations may change, and unintended errors may occur. This content may not address every aspect of the relevant legal requirements. For guidance on your specific situation, consult your attorney.