Hiring Discrimination: How to Protect Yourself

Getting a rejection email from a job application hurts, but if you’re denied a job—or even denied an interview—because of your race, age, gender, or religion, you may have just encountered hiring discrimination. Hiring discrimination laws protect applicants, not just employees, but it can be difficult to recognize this subtle and common form of discrimination.  

Just like the “boy who cried wolf,” we have a widespread cultural myth that people are too quick to claim discrimination. Contrary to that cultural narrative, those who come forward with claims of discrimination often grapple with the decision to come forward and call out discrimination for what it is, especially when facing the cultural stigma of “playing the race card” or “being a sensitive woman.”

It’s normal to want to believe that, although you weren’t hired, you may be able to do something different to improve your chances at this particular company next time. However, if your application was declined or you weren’t offered a job after an interview because of a protected class, such as age, race, skin color, national origin, disability, sex, or pregnancy, the company—not your resume—might be to blame. This can be a disheartening reality for job candidates who belong to a legally protected group.

Discrimination in hiring practices

Many people, such as persons above the age of 50, persons with culturally specific names, or people whose identities lie outside of the gender binary, experience a long-standing pattern of failure to hire despite steadfast efforts to develop their resumes and credentials. Some even experience a sole instance of hiring discrimination with such peculiar circumstances surrounding their application or interview that the circumstances lead to the question, “Was I discriminated against?” 

We hope that by pooling together our clients’ experiences with hiring discrimination, we can help job applicants advocate for themselves, promote a culture of workplace equity, and preserve their claims in case legal action becomes necessary. Read on to learn more about the types of hiring discrimination our firm sees most often.

How to identify discrimination in the hiring process

At times it may be difficult to tell whether your protected class was the one of the reasons a company declined your application for employment. The most common types of hiring discrimination we see include discrimination on the basis of the job candidate’s:

  • race 
  • skin color 
  • national origin
  • age
  • religion
  • sex
  • gender identity 
  • sexual orientation
  • pregnancy 
  • disability 

Name discrimination in hiring

If the hiring party has a bias against the applicant’s perceived race, skin color, national origin, age, or sex, the applicant’s name alone may set off a cascade of stereotypes and assumptions about the candidate and inhibit the company from moving forward with that individual’s application. It is, unfortunately, a well-documented phenomenon in the sphere of employment that two identical resumes and applications bearing two different names will perform differently due to employer bias (Kline et al., 2021). While the statistical difference between application performance due to a Black-sounding, Hispanic-sounding, or international-sounding name has decreased in recent years, in part due to diverse representation in leadership, estimates still hover at around a 2% difference in call-back rates based on a person’s name alone. 

In cases of discrimination based on the applicant’s name, the company may respond to the applicant that the role has already been filled or that they are no longer looking for candidates. Upon further investigation, the applicant may notice that the virtual job listing is still live and accepting applications.

Other times, a job candidate’s protected class may not be evident until the interview stage of the job inquiry. An application for employment may have been cruising along without a hitch until the applicant:

  • disclosed their need for disability accommodations,
  • used a mobility aid during the interview,
  • arrived at the interview with visible indicators of age, such as gray hair,
  • wore religious garments to the interview, or
  • dressed in a way that broke with cultural gender norms.

What happens next varies from case to case. Occasionally, employers will make direct, discriminatory comments to the applicant such as stating that the applicant “sounded like you were a different race on the phone” or is “older than I expected,” or asking whether the applicant’s disability will “interfere with your ability to perform job duties.” Some hiring personnel may even state that the person won’t be hired due to their protected class. This can sound like, “I don’t think the company is ready to have a woman like you on our team,” or more direct, such as, “Sorry, but we don’t hire transgender people.”

Even if the hiring personnel did not make direct comments about the applicant’s protected class, the applicant may have noticed more subtle signs of the interviewer’s discomfort or noticed a shift in their demeanor from friendly and optimistic before they knew about the applicant’s protected class to cold or unresponsive after the applicant disclosed their protected class or simply walked into the interview and did not match the interviewer’s perception about how they might look.

I think I’ve been a victim of discriminatory hiring practices. What should I do?

If you are a member of a protected class, it is a good idea to keep thorough documentation of your job searches, applications, and correspondence during employment as a general precaution. State and federal laws do protect employees from workplace and hiring discrimination, and keeping this documentation helps prove and support any potential claim of discrimination that may arise.

If you believe you have been discriminated against in the hiring process, keep thorough documentation of the events that led you to believe you were discriminated against. You can develop your case by saving all emails, texts, social media messages, applications, resumes, and recordings (after consulting your state’s laws on consent to record). Be sure to save screenshots with timestamps if the job listing stays live after the company alleges having filled the position. If you are aware of a peer with similar or less experience but a different protected class who received an interview, while you did not, be sure to document what you know. Be sure to mention whatever documentation and witness testimony you can provide when you decide to speak with an attorney. Our attorneys at Jackson Spencer Law are dedicated to assisting employees who have experience discrimination in the workplace, including discrimination that can occur before you get an offer.

Finally, be sure to continue searching for work! Not only will you reduce your financial damages by searching for work, but a safer and healthier workplace may truly be right around the corner.


Reference List

Kline, P., Rose, E., & Walters, C. (2021). Systemic discrimination among large U.S. employers. The Quarterly Journal of Economics (2022), 1–74.