Last Updated on November 28, 2023

The explosive growth in the use of artificial intelligence (AI) and other automated systems to help make employment decisions is bringing new dangers for employers.

This message was a key theme at a recent Equal Employment Opportunity Commission (EEOC) hearing that was designed to educate employers about the civil rights implications of using these technologies.

In a release, EEOC Chair Charlotte Burrows said the commission wants to make sure these tools “do not become high-tech pathways to discrimination,” while noting its intent to take further steps to ensure the tools are used legally.

Artificial Intelligence: Advice and Recommendations

In the nearly four-hour hearing, twelve witnesses from a range of backgrounds offered their insights and recommendations. The witnesses included experts from the American Civil Liberties Union (ACLU), the U.S. Chamber of Commerce, and the Brookings Institution.

The most recent available data indicates that a clear majority of employers—as many as seven out of 10—are using some sort of automated decision-making (ADM) tool in connection with employment decisions. In addition to supplying that statistic as part of her testimony, the director of the ACLU’s Racial Justice Program cited a source indicating that 99% of Fortune 500 companies use ADM tools.

This is a phenomenon that is not going away any time soon. In fact, it is likely that AI will continue to grow.

There are clearly benefits to Employers using AI and other automated systems, but there are also concerns.

Employer Benefits and Dangers

AI Benefits for Employers

Employers may use AI tools to:

• Anonymize interviewees and resumes.
• Perform structured interviews.
• Reduce the bias of individual managers by applying criteria uniformly.
• Help to detect and mitigate existing workplace bias.

AI Dangers for Employers

AI presents potential problems:

• Discrimination can creep into the process.
• Data may include criminal legal proceedings, evictions, and credit history.
• Algorithms can be less accurate for people in underrepresented groups.

Older people may be harmed by a similar problem, according to the senior advisor at AARP. “Older adults may be excluded from consideration sets due to a lack of certain types of data in their digital footprints,” she explained.

Legal Considerations

Employers may find themselves accused of unlawful disparate treatment if an employee can show they intentionally used a tool to disadvantage people in a protected class. The use of such tools can also give rise to disparate impact claims.

Government Action on AI

The federal government has already taken some steps to avoid issues with AI. For example, the EEOC and Department of Justice have already released guidance to help keep employers from running afoul of Americans with Disabilities Act (ADA) requirements when using AI tools. In addition, in October of 2022 the White House Office of Science and Technology Policy released its “Blueprint for an AI Bill of Rights.” That document identifies five principles it says should guide the production and use of automated systems, both within and outside the context of employment.

Essentially, those principles say:

1. Systems should be safe and effective.
2. Systems should be used and designed equitably and avoid discriminatory algorithms.
3. People should be protected from abusive data practices and have power over how data about them is used.
4. People should know when an automated system is being used, and
5. People should be able to opt out and have access to someone who can remedy problems they encounter.

What Employers Should Know?

To avoid bias, employers can take steps including:

• Stop asking for age-related data in applications.
• Request or conduct regular audits of algorithmic performance, and
• Include age as an element of DEI initiatives.

Companies should also be upfront about their use of AI, and applicants and employees should know when they use it. Employers should work with consultants and counsel to draft best practices.

MyHRConcierge will be following this important topic and will work to bring you updates as they become available.

Contact MyHRConcierge for HR Assistance

It is important that HR professionals are aware of the ongoing changes in the industry landscape. Contact MyHRConcierge to help you stay abreast of the changes that matter most to you. You can contact us at ccooley@myhrconcierge.com, 855-538-6947 ext 108 or schedule a free consultation below.