Orange County Employment Lawyers Blog
Artificial Intelligence (better known as AI) has piqued employer interest for its potential in streamlining the hiring process. However, there’s legitimate concern that it can systematically engage in unlawful discriminatory practices in hiring.
At this point, most large employers (about 83 percent – including 99 percent of Fortune 500 firms) use some type of AI automation in facilitating hiring procedures. However, the U.S. Equal Employment Opportunity Commission has raised pointed questions about what these technology platforms and employers are doing to ensure these programs don’t have discriminatory practices baked in.
Just recently, a man filed a California employment discrimination lawsuit against a company who alleges artificial intelligence technology used by many employers have caused him to be systematically discriminated against. According to court records filed in Northern California, the plaintiff – a Black man over 40 who has been diagnosed with both anxiety and depression – has worked in the financial services industry for several years.
The plaintiff says that since 2018, he’s used the technology produced by a company called Workday to apply at somewhere between 80 and 100 jobs in his field. Despite having adequate qualifications and experience for those positions, he’s been outright rejected for all of them. His attorney says that based on his client’s experience and qualifications, he should not be outright rejected for that many positions. The accusation is that this technology has been discriminating against him on the basis of race, age, and disability – all illegal under state and federal employment laws.
As our Los Angeles employment lawyers can explain, artificial intelligence job screening tools are reliant on inputs and algorithms that are created by humans. Whether they realize it or not, human beings have built-in biases. For a qualified candidate to be denied 80 to 100 times does raise some alarm bells about whether the screening practices are discriminatory.
The case raises questions about how heavily companies should be relying on this type of potentially flawed technology when the stakes are so high.
Types of AI Hiring Technology
Among the types of artificial intelligence employers are using as part of the recruiting and hiring process are chat bots, resume scanners, and video interviewing platforms. Recognizing the potential for problems, the EEOC last year issued some guidance with respect to use of these technologies as it applies to the Americans With Disabilities Act. Some of these programs actually evaluate the facial expressions and speech patterns of a candidate and assign value to these – factors that can create discrimination or perpetuate bias.
For instance, if a machine is analyzing a job candidate’s speech patterns to ascertain a person’s ability to solve problems, a person who is fully qualified – and even the superior candidate – may be screened out if they have a speech impediment. That would be unlawful disability discrimination.
Another example would be a chat bot that automatically screens out certain candidates who have larger gaps in their resume than others. This could inadvertently screen out qualified candidates who took time off because they were pregnant/had a child or those who struggle with a chronic illness. In either situation, it would amount to unlawful discrimination.
Older workers might find themselves disadvantaged in dealing with certain AI tools in the hiring process.
These processes can become even more ingrained through machine-learning, which would further perpetuate these biases in employment practices.
Have I Been Discriminated Against by AI?
Perhaps the trickiest element in these cases is knowing whether you were weeded out as a potential job candidate for a legitimate or discriminatory reason. It can be difficult to tell.
The EEOC has recommended regular audits of AI hiring programs and processes. The question of who should be responsible for those audits is a bit dicey, as each poses possible risks.
In the meantime, if you start noticing a pattern of outright rejection for jobs you’re qualified to take on, you might want to consider an initial consultation with a Los Angeles employment law attorney.
Contact the employment attorneys at Nassiri Law Group, practicing in Newport Beach, Riverside and Los Angeles. Call 714-937-2020.
Additional Resources:
The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees, 2022, U.S. EEOC