Artificial Intelligence Facing Increasing Scrutiny under Discrimination Laws

More and more employers are using artificial intelligence (AI) in the hiring process, and as a result, the government and civil rights groups are both interested and concerned about the practice.  One might argue that the use of artificial intelligence is helpful in ensuring non-discrimination, since hiring decisions would be unaffected by the personal bias of hiring officials.  According to EEOC Chair Charlotte Burrows, as many as 83% of employers are using some automated tools to screen or rank hiring candidates.  For companies that get many thousands of applications and resumes, some form of AI may expedite the process.  AI uses bots to screen for certain words and look through qualifications, scoring and ranking candidates.  The theory behind these tools is that the AI can predict how successful a job candidate will be in a position by comparing how well that person matches incumbent top performers in the position.  At the present time, certain commentators believe that there is a general lack of knowledge as to whether the AI hiring tools work or whether they lead to bias and discrimination against applicants.

The EEOC has announced that it is reviewing artificial intelligence tools and how they might contribute to bias, including both for hiring and employee surveillance.  A law has been passed in New York City that takes effect at the beginning of 2023, banning the use of automated employment decision tools to screen job candidates unless the technology has been subject to a "bias audit" conducted a year before the tool is used.  The District of Columbia has recently proposed legislation that would address "algorithmic discrimination" by requiring employers to submit to annual audits of their technology.

This is part of our February 2022 Newsletter.

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