January 16 Tip of the Week

“Artificial Intelligence, Help or Hindrance”

As employers continue to look for ways to screen job applicants in a quick and efficient manner, particularly in this labor market where it is difficult to recruit and hire good employees, they continue to rely on hiring software programs that use on artificial intelligence and algorithms to review resumes and job applications to determine if the applicant meets the requirements of the position.  While in theory this seems like an excellent tool to ensure that interviews are limited to job applicants who possess the qualifications for the job, in reality there are a number of issues that arise when such tools are used. 

Initially, in order for a hiring program that uses artificial intelligence to screen candidates to be effective, the job description and qualifications must be written in such a way as to ensure that it accurately describes what is needed to be successful in such a role.  A poorly drafted job posting, against which potential job candidates are measured, will likely result in a poor candidate pool and may result in the unintended consequence of treating certain groups of applicants in a disparate manner. 

Job applicants are also becoming wise to the use of these screening tools and know to add different buzz words and information from the job posting to make it through the initial AI screen.  As we have learned, the fact that someone includes an item in their resume doesn’t mean that they actually have the experience or the qualifications that they put down on paper.  This means that AI screening tools tend to reward those who embellish or adjust their resumes to fit the job posting, rather than those candidates who are not as savvy with respect to the hiring process but actually possess the skills and abilities to do the job. 

The EEOC and other state and local governments are taking a closer look at the use of AI screening tools and are finding that they often are biased in their screening of candidates.  As a result, an increasing number of states and localities are passing laws regarding the use of these tools.  In fact, in October 2021, the EEOC commenced an initiative entitled “Initiative on Artificial Intelligence and Algorithmic Fairness.”  One of the outcomes of this initiative is new technical guidance from the EEOC on the use of these AI screening software platforms:  https://www.eeoc.gov/laws/guidance/americans-disabilities-act-and-use-software-algorithms-and-artificial-intelligence.  The EEOC has raised particular concerns about the use of these tools and their impact on individuals with disabilities. 

For their part, many state and local governments are also looking at the use of these screening tools and finding that they may actually discriminate against certain groups of applicants.  New York City recently passed a law, which took effect on January 1, 2023, that requires employers who use these artificial intelligence decision making tools in their hiring practices to notify applicants of the use of these tools and to conduct independent bias audits to ensure that there is no discriminatory impact on applicants are result of their use.  Illinois has also passed a law that requires employers who use these tools to require employers to notify candidates that AI will be used in video interviews, obtain consent to use AI, and explain to the candidate how the AI tool works and what information is being used to evaluate the candidate.  Other states have begun the process of examining the use of these tools and their impact and there is much legislation pending in an effort to ensure that candidates are screened fairly and that there is no disparate impact as a result of the use of AI. 

What does this mean for employers and human resources professionals?  First, it is important to ensure that all applicants are given an equal opportunity to be considered for a position.  This means that job descriptions, job postings, and job qualifications must be carefully crafted to ensure that they measure objective criteria and do not lead to a disparate impact on certain types of candidates.  Differences in educational requirements or work histories can negatively impact underrepresented groups and could give rise to a discrimination claim.  It is important for human resources professionals to monitor the impact of these tools to avoid these unintended consequences.  Second, when deciding to use these tools, employers should ensure that the AI tool that they choose complies with all non-discrimination and employment laws and that the contract for these products provides protections to employers from any unintended outcomes.  Finally, employers and human resources professionals need to stay abreast of the changing attitudes toward the use of these tools and ensure that they are complying with all state, federal and local laws.  As we all know, laws change frequently and it is important to ensure compliance with all laws – new and old. 

myHRcounsel can assist you in monitoring the changing laws, evaluating the impact of these tools, and drafting appropriate job descriptions and job posting materials.  Our job is to help you navigate the ever-changing world of labor and employment law and we welcome the opportunity to work with you to ensure your success and compliance in this highly regulated environment.