As this Harvard Business Review article thoughtfully explores, artificial intelligence (AI) has the potential to decrease gender bias in hiring if it is properly trained and used…or to replicate existing workplace biases if it is not. With more employers using AI and other big data solutions in hiring, lawmakers and enforcement agencies, as well as plaintiffs’ law firms, are increasingly focused on issues of “algorithmic bias.” For example, HBR’s article mentions the potential of AI-graded video interviews to reduce gender bias in hiring. Just last month, Illinois passed a law requiring employers to notify candidates when AI would be used to score their video interviews, including explaining the factors that go into the score. This new law poses particular challenges for “black box” AI solutions, where the employer or its AI vendor may struggle to describe the factors their tool uses. Meanwhile, in the Northern District of California, litigation is proceeding against employers who are alleged to have discriminated against applicants based on algorithms used in Facebook recruiting advertisements.
The Illinois law and California litigation are just the first pebbles in a coming avalanche of regulation and litigation regarding the use of AI in talent sourcing, acquisition, selection, and management. In the meantime, to stay in compliance and ahead of risk as the legal landscape continues to shift, employers using AI in hiring should work with inside or outside counsel to monitor and respond promptly to any adverse impact from their AI tool, and make sure those tools are validated as required by the federal Uniform Guidelines on Employee Selection Procedures. Just as important, consider using “glass box” AI tools where the factors considered are easily explainable, rather than black box tools, where the factors are hard to explain, and so even harder to defend.
Mark Girouard provides strategic preventative advice and litigation defense to clients on a range of issues, including the use of AI and big data in hiring and recruiting. He can be reached at 612.305.7579 or firstname.lastname@example.org.