How to Improve Legal Defensibility of Hiring Processes: 5 Effective Ways

by Victoria Mckee

When asked what defines effective selection systems, the answers greatly depend on who you’ll ask in the organization.


If you were to ask operations, they’d define it as a system hiring high-quality candidates quickly. For human resources, it’s described as a system that’s easy to use and administer, allowing them to monitor and process candidates rapidly. For legal, it’s defined as a system creating less work for them, meaning no legal issues against the organizations.


Either way, you can see that most, if not all, organizations commit to making the recruiting and hiring processes as fair and objective as possible. After all, it’s the right thing to do! Furthermore, organizations want their hiring decisions to be defensible, explainable, and legal, which is where legal defensibility comes along.


Some people would believe that the three departments mentioned above would have differing goals, but it doesn’t need to be with what we see! Let’s tackle legal defensibility and how to improve it for a better hiring process in the organization.



What is Legal Defensibility?

What is legal defensibility in the first place? What makes recruitment legally defensible?


The recruitment process is legally defensible if it’s valid and will predict job performance with all appropriate considerations made across all the groups. Many businesses who commit mistakes would genuinely want to achieve legal defensibility, but there hasn’t been a legal claim defeated because a company simply ‘meant well!’


Recruiters are responsible for ensuring that the processes they develop and implement are inclusive and fair. The recruitment process will be more robust and legally defensible when creating a fair process while ensuring that they recruited the best person fit for the open job position.



Worst Mistakes of the Hiring Process

Unfortunately, numerous companies have stories on how their recruitment went wrong. Here are common mistakes that can leave recruiters open to legal action:


They don’t perform a job analysis.

Businesses are incredibly vulnerable to legal action if candidates believe that the recruitment process they experienced did not accurately assess their ability to perform the position.


That’s why it’s crucial to gather, examine, and interpret all reliable information and data regarding the nature of the role. Without doing so, recruiters will be less capable of building the appropriate assessments that reflect the job.


As a result, employers might end up putting candidates through unjustified tests that may sound easy to conduct or seem like ideal employees would do well. However, such tests end up irrelevant, thus wasting the candidate’s time.


Do get the appropriate expertise involved at the early recruitment stages, which will save a lot of time, money, and stress in the long run.



Failure to monitor diversity

Suppose companies do not actively ensure that they have an inclusive recruitment process. In that case, they become at risk of justified and high-profile lawsuits that destroy both company and employer brand.

legal defensibility


Look at The Equality Act 2010, which covers a wide range, including discrimination during the recruiting process and the workplace. The Act requires employers to promote equality and prevent any act of discrimination on any grounds. Furthermore, there’s a solid case for diversity here.


To prevent any legal trouble, you can create multimedia situational judgment tests, requiring candidates to rate the effectiveness of various responses to realistic work-related scenarios. These assessments are seen fairer compared to other assessments. That said, it’s still crucial for recruiters and employers to review the data monitoring the effect of such assessments, ensuring they aren’t unknowingly affecting candidates.


They run inconsistent interviews.

Interviews are one of the most likely parts of the recruitment process resulting in lawsuits. For instance, employers can get in real trouble for asking inappropriate questions to candidates, such as their health conditions, personal history, or family plans. The same goes for questions focusing on characteristics like race, age, or gender, which are rarely relevant to consider!


All interviews should be consistent and structured, with every candidate asked the same question. Furthermore, all candidates must meet the same criteria, completing all stages of the process, no matter what the employer believes about the candidate’s capability and suitability for the job.


There are many tools that organizations can use to help them build competency-based and professional interviews. By providing recruiters and hiring managers the vital content and tools for interviews, you’ll experience less subjectivity, reducing the risk of asking inappropriate questions. Furthermore, it will give interviewers the answers needed to determine who the best talent is for the position.


legal defensibility


Ways to Improve Legal Defensibility

Now that you know what legal defensibility is and the mistakes to avoid, the next step is to learn how to improve it! Here are the tips to follow:



Improve the Consistency

Sometimes, hiring managers may skip steps in the recruitment process, hiring someone even if they failed the interview and saying they just misplaced the failed results. These inconsistent practices and “exceptions” are a considerable concern when ensuring that you have a legally defensible system.


It’s crucial to maintain consistent processes, assessments, tools, and competencies throughout the hiring process. All candidates must meet the same criteria to remain fair and legally defensible.



Review the Hiring and Recruitment Process Often

It’s one thing to stay consistent and ensure all candidates meet the same criteria. Still, you also need to ensure that the standards are legal and relevant to the particular open position.


Will the open position require at least a high school diploma, and why? Should you ask candidates if they’re okay with $15/hour as their starting pay, and is this even still the minimum wage?


Things will change, and the hiring process must adapt to ensure all questions will remain relevant. Identify the changes you must make to the process by evaluating the selection process every time you post an open position, especially if you haven’t posted one in a long time.



Review Laws

legal defensibility

Similar to how job aspects and criteria change, so do state and federal laws. While it isn’t easy to stay updated on the latest law-related changes, it’s essential to communicate with the internal or external legal department to understand such changes and how they will affect the hiring process.


For example, maybe your state has restrictions on asking about any felonies in job applications. If you’re unsure of that, then it’s best to talk with your legal team as soon as possible to revise the hiring process accordingly.



Improve Job Analyses

How will you know what is and isn’t relevant in specific job positions? Will the candidate have to lift a particular amount of weight? Will they require excellent attention to detail? What skill must they possess?


One of the best ways to make sure you ask and assess relevant concepts is through a job analysis. Job analyses will review open positions to learn more about their specific elements and what’s essential for successful work performance. These analyses will represent a crucial element to legal defensibility while ensuring that your organization hires candidates who can perform the necessary job elements properly.



The External Review

As you get closer to something, it is more difficult to identify any flaws or areas for improvement. We see many companies relying on how “they’ve always done this way” when determining whether a process is effective or not. Numerous organizations in history have relied on that dated wisdom, but unfortunately, they aren’t operating anymore.


Have an expert outside critically evaluate the organization’s hiring practices, which will most likely improve your system’s legal defensibility and performance.



Wrapping It Up

Companies usually build the proper practices, procedures, or policies for legal defensibility only when it’s too late and have no choice after settling lawsuits or losing to them. Don’t follow suit and begin following these practices to improve legal defensibility now!


We hope our article on legal defensibility helped you learn more about its importance and what you can do to prevent any legal trouble while finding the best talents. What are you waiting for? Evaluate your current hiring process and see what you can do to improve it.

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