Since shelter-in-place and self-isolation orders have become the norm around the country, more employers are utilizing video interview tools in lieu of interviewing candidates in person. These tools allow HR and hiring teams to continue to assess talent with little interruption. But Nilan Johnson Lewis labor and employment attorney Mark Girouard urges companies to keep certain legal requirements in mind before turning on the cameras.

Many video interview platforms use artificial intelligence (AI), rather than decision-makers, to score interview results. While AI scoring algorithms are promoted for their lack of “implicit biases” that humans may have, if the algorithms are not carefully designed, they risk replicating, and potentially magnifying, disparities that exist in an employer’s workforce.

In addition, “AI can score candidates based on facial expressions, voice inflections or other characteristics that can have a disparate impact based on race, gender, age, disability or other protected traits,” says Girouard.

These concerns are reflected in recent legal changes and challenges. For example, Illinois passed its Artificial Intelligence Video Interview Act in 2019, limiting employers’ use of AI in video interviews unless they gain candidates’ consent to AI-based scoring and give them the option to opt-out. If they do obtain a candidate’s consent, employers must also describe the characteristics evaluated by the AI, which can be extremely challenging because many tools use complex, and continuously changing, proprietary “black box” AI. With other states and municipalities looking at proposals similar to Illinois—and complaints regarding AI-based selection tools being filed with federal enforcement agencies—Girouard says that employers should shy away from video interview platforms that do not use explainable, “glass box” AI.

Girouard also advises companies to be open-minded with interview options, even for video interview platforms that do not use AI; if a candidate doesn’t have access to video conferencing tools, companies should provide other means for interviewing (phone, etc.) to avoid potential discrimination claims. To speak with Mark Girouard about the role of AI and other risks associated with video interviewing, contact him at 612.305.7579 or mgirouard@nilanjohnson.com.