September 9 Tip of the Week

“AI and Hiring Process”

Many employers have chosen to use artificial intelligence tools as part of their hiring process.  These tools use algorithm based screening tools, such as Workday and other software programs that are designed to assist employers in reviewing applications by weeding out applicants that the software program and algorithm deem to be not qualified.  Because the tool acts as a screening tool, questions have arisen about who is responsible for ensuring that these programs and their selection criteria do not violate the equal employment laws.  A recent case, Mobley v. Workday, Inc., which was filed in the Northern District of Columbia, has shed some light on this issue. 

In the Workday case, a job applicant – an African-American male over the age of 40 and with a disability – filed suit against Workday alleging that he had applied for more than 100 jobs with various employers using the platform provided by Workday and was rejected every time.  Mobley alleged that the software used an algorithm that discriminated against him and others like him – disabled, over 40 and a member of a protected classification.  Initially, Workday filed a motion to have the case dismissed, arguing that it was not the employer in this case and was not the final decision maker and, therefore, could not have discriminated against Mobley and others like him. 

That motion to dismiss was denied and the case has been recently certified as a class action, allowing all other applicants over the age of 40 who were denied employment opportunities with employers using Workday’s AI hiring tools to join the class. The class certification covered more than the state of California and allowed a nationwide group of individuals who believed that they were discriminated against in the hiring process when Workday software was used by employers to join the suit. 

This decision to allow the case to go forward as a nationwide class action was based on the fact that, although Workday was not the final decision maker, its tools essentially denied employment opportunities to applicants through the use of their selection criteria in the initial screening process.  Because Workday’s software program acted as a gateway to the employment opportunities and excluded many applicants on the basis of its algorithm, it was determined that Workday functioned as an employment agency and could be found to have acted in a discriminatory manner. 

This case is ongoing and it is has not been decided on the merits.  The fact that the case is still pending does not negate the fact that it is instructive for employers.  Employers must be careful when using AI based applicant screening tools.  First, before purchasing software for this purpose, an employer should review the contract with the software vendor to ensure that the employer is  protected against claims of discrimination when using this tool.  This means that the AI tool should have safeguards that prevent bias, test for discriminatory impact, and are transparent with respect to the algorithm used and how it affects the overall hiring process. 

Second, an employer should not rely only on the AI software program.  Make sure that your human resources staff is reviewing candidates and ensuring that certain groups or types of applicants are not excluded from consideration for openings. 

Finally, employers must ensure that they can provide documentation of the criteria used to screen candidates and how those criteria are job related and nondiscriminatory.  Make sure you avoid using amorphous terms like “fit” and ensure that your job descriptions do not contain qualifications or requirements that skew toward a certain type of individual.  For example, avoid using terms like “new graduates” that would indicate a preference for younger candidates. 

The allure of an AI based tool that can be used to streamline the hiring process is strong; however, you need to be sure that, in using this process, you are not inadvertently opening yourself up to claims of discrimination or are missing out on great candidates because of the application of an AI based screening criteria.  myHRcounsel can assist you in ensuring that your hiring practices, including the use of AI tools, are up to date and legally compliant.