These days, the hiring process typically involves uploading resumes and filing online applications. That allows employers to use artificial intelligence (AI) and various algorithms to “review” applicants and help narrow the field down to a select group of candidates to interview.
Automated hiring technology includes everything from gamified personality tests to voice analysis. Those behind this technology often claim that it minimizes the potential for the human biases to lead to hiring discrimination.
The DOJ and EEOC are teaming up to protect applicants from programmed bias
According to the U.S. Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC), however, these technologies may sometimes violate the Americans with Disabilities Act (ADA). The ADA is intended to protect people with disabilities from workplace discrimination, including in hiring. Last year, over four-fifths of people with disabilities in this country were nevertheless unemployed.
The DOJ and EEOC are alerting employers they could be violating the ADA by using these technologies even if they make no intentional move to discriminate. This is because some of these technologies sometimes operate in such a way that they perpetuate past biases instead of minimizing them.
The assistant attorney general for civil rights says the DOJ and EEOC “are prepared to stand up for people with disabilities who are locked out of the job market because of increased reliance on these bias-fueled technologies.” She notes that AI and algorithms are “essentially turbocharging the way in which employers can discriminate against people who may otherwise be fully qualified for the positions that they’re seeking.”
How could automated hiring technology discriminate?
Technology that tracks body language and speech, for example, can “weed out” disabled people who are qualified for the job they’re applying for. Gamified personality tests can “spot” minor mental disorders that are otherwise unnoticeable and irrelevant to performance.
Research has found that these algorithms are often based on data that reflect a preexisting bias. As one business professor explains, “The algorithm doesn’t have a…concept for disability. It just learns and predicts based on the data. If the data has biases, it will only reproduce the biases.”
If the algorithm or AI does rely on data sets or other information that includes or plays into biases against people with disabilities, it could be a source of unlawful discrimination. This could be the case even if the employer did not intend to use it for a discriminatory purpose.
People who suspect that a bot, algorithm or artificial intelligence program prevented them from getting a job because of their disability may have important legal claims. Discuss your concerns with an employment law attorney.
Leigh Law Group represents California employees in employment law cases.