Supplemental materials for LEAP 2025 session The Hiring Workshop: Legal Strategies and Best Practices
Employers increasingly rely on artificial intelligence-based software to manage the hiring process. Using AI algorithms to scan and screen job applications and résumés can save time and effort.
Plus, according to AI program developers, the software may even shield you from allegations that you discriminated against an applicant after discovering some protected characteristic—their age or an ethnic-sounding name, for example—when you reviewed application materials.
Turns out, that may not be the case. Critics of AI software claim discrimination may be baked into the algorithms. The EEOC recently launched an initiative looking into inherent bias in AI hiring programs. States have also begun questioning whether AI lives up to its promise of quick and non-discriminatory screening.
For example, in March, the California Fair Employment and Housing Council released draft regulation revisions that expand the definition of AI—in its terminology, automated-decision systems—to include any computational process that includes algorithms that screen résumés for terms or patterns, quizzes or other challenges that assess desired characteristics and online screening tests for cultural fit, personality or cognitive abilities. The regulations would forbid use of intentionally discriminatory programs, of course. But they would also ban AI programs that are facially neutral but have disparate impact on a protected class.
A federal court handling a California employment discrimination case just asked the California Supreme Court to decide whether pre-employment screening providers can be held liable for impermissible questions during medical screening exams. If the answer is yes, developers of AI screening and hiring software would almost certainly fall under the same category.
Advice: If you use AI software to hire, ask the developer if they have tested their programs for both intentional and disparate-impact discrimination.
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