The use of artificial intelligence (AI) has become widespread in our society, particularly in the workplace. In fact, over 80% of employers now utilize this type of technology to make employment decisions. From resume scanning, video interviewing, and testing, many employers implement algorithmic decision-making at various stages of the employment process with AI at the center of the software.

But while this technology is meant to improve efficiency and eliminate the implicit bias that often pervades the hiring process, it presents a number of challenges — and should not be used as a substitute for human judgment and oversight.

Discrimination Concerns with the Use of AI in Employment Decisions

The use of AI in employment decisions raises several discrimination concerns when it comes to complying with certain federal laws. Although proponents argue that AI can help to reduce or even eliminate human bias during the employee hiring process, some of the functions that are inherent in these types of software may actually perpetuate discriminatory employment or hiring practices.

If an employer chooses to use AI in employment decisions, they must ensure that their practices comply with existing laws that prohibit discrimination in the workplace, including the following:

• Title VII of the Civil Rights Act of 1964 — This law prohibits discrimination on the basis of race, color, religion, sex, or national origin.
• Americans with Disabilities Act (ADA) — This statute protects individuals with disabilities from discrimination.
• Age Discrimination in Employment Act — This Act prohibits discrimination against applicants and employees who are 40 or older.
• State and local laws — In addition to the federal laws prohibiting employment discrimination, Oklahoma also has state and federal laws in place that ban discriminatory practices.

No federal law currently exists regarding the use of AI during the hiring process. However, Algorithmic Accountability was introduced by members of the U.S. House of Representatives last year. This would bring transparency to the use of AI in employment decisions and require companies to conduct assessments regarding bias.

How Can the Use of AI in Employment Decisions Lead to Biased Results?

When AI is used to make employment decisions, the developer relies on the computer to analyze data and determine the set of criteria that is used when hiring employees — this can lead to inadvertent discrimination. For instance, AI technology is often used by employers to review the resumes of previously successful employees in order to decide the criteria that should be applied when making employment decisions. If these resumes were primarily from a group of individuals with the same characteristics, the data collected to create the hiring criteria may result in similarly scored resumes. In other words, if the model used by AI skews in favor of Caucasian males, it may lead to biased results.

Employers Be Mindful When Using AI to Make Employment Decisions

Employers who use AI in employment decisions must be mindful how human biases can be coded into this technology. Importantly, since all AI tools are coded by humans who are subject to both conscious and unconscious biases, the risk of bias when using this technology is substantial. The Equal Employment Opportunity Commission (EEOC) issued guidance to address this matter, making it clear that an employer can be held responsible for using an AI tool that has a discriminatory effect against a protected class.

While various laws prohibit an employer from using hiring procedures that have the effect of disproportionately excluding people with a certain characteristic, they can also be held liable for selection procedures that are facially neutral but have a disparate impact. Simply put, an employer can be held accountable if an AI tool has an adverse effect on any protected class, even if they did not have the intent to discriminate. But not only can liability arise in cases where the employer implements AI software that they developed for using in the hiring process — an employer can be liable for discrimination if the tool was administered by another company or created by an outside software developer.

When using AI in employment decisions, employers should make sure that the technology does not replace human judgment. Even if AI tools were utilized during the hiring process, any final decisions should be made by management or Human Resources. In addition to ensuring compliance with the law and reducing the risk of harmful outcomes, human oversight can help to mitigate any concerns of distrust among employees and applicants.

Contact an Experienced Oklahoma Employment Law Attorney

If you’re an employer, it’s crucial to ensure you do not run afoul of the state and federal anti-discrimination laws. A knowledgeable employment law attorney can help you ensure legal and regulatory compliance. With offices in Tulsa and Claremore, Titus Hillis Reynolds Love provides reliable representation to companies, business owners, and employers throughout Oklahoma for matters at both the state and federal levels. Contact us online or call (918) 216-0892 to schedule a consultation and learn how we can assist you.