Since ChatGPT and other generative AI applications emerged in recent years, discussions around AI’s potential positive and negative consequences have become part of everyday life. However, according to Pew Research, 61 percent of Americans are unaware that artificial intelligence is used by employers in the hiring process – and has been for some time.
While many recruiters use AI algorithms for resume screening, they are being increasingly used for customized job postings, screening through discussions with chatbots, and even one-way video interviews. Pew Research found that 47 percent of Americans felt AI would do a better job of treating all candidates fairly, compared to humans. However, AI may be more susceptible to bias and even breaking anti-discrimination laws than we might imagine.
In this article, we will explore the impact AI could have on employment discrimination. We will examine how it could impact your rights and what you can do if they have been violated.
The Law on Employment Discrimination
Discrimination laws forbid discrimination in any aspect of employment, from hiring to firing and everything in between. The U.S. Equal Opportunity Commission (EEOC) enforces federal laws on employment discrimination.
The federal laws the EEOC enforces affect most businesses that employ a minimum of 15 employees or 20 employees in age discrimination cases. Anti-discrimination laws also cover labor unions and employment agencies.
Some of the laws enforced by the EEOC include:
- Title VII of the Civil Rights Act: This workplace anti-discrimination law was enacted in 1964 and prohibits employment discrimination on the grounds of several protected characteristics, but not age or disability, which are protected by different laws. Examples of Title VII violations include disparate treatment – treating employees differently and disparate impact – requirements that seem neutral at first but actually have a disproportionate effect on a protected class of employees.
- Americans with Disabilities Act (ADA): The ADA prohibits discrimination against people with disabilities. It also requires employers to make reasonable accommodations requested by the disabled person.
- Age Discrimination in Employment Act (ADEA): Age discrimination in employment has been illegal since 1967. Employers must not refuse to hire someone, limit his or her opportunities, or reduce his or her wages based on age.
Employers must ensure compliance with all anti-discrimination laws, whether they use human or AI technology in the HR process.
Protected characteristics
Under Title VII, it is illegal to discriminate against a person based on the following characteristics:
- Sex (which includes pregnancy, transgender status, and sexual orientation)
- Age (40 or above)
- Religion
- Color
- Race
- National origin
- Disability
- Genetic information
Title VII also protects people against retaliation for filing or participating in discrimination investigations or lawsuits.
Aspects of employment impacted by Title VII, ADA, ADEA
These laws make discrimination unlawful at every stage of the employment process.
A few of the areas covered by the law include:
- Job advertisements: In most cases, an employer cannot discriminate by singling out particular groups of desirable candidates
- Recruitment: Hiring processes must not exclude certain groups of people at any stage
- Background checks: Must focus on whether a person is qualified for the role and not include irrelevant questions or photographs of applicants
Currently, the three areas mentioned above are most impacted by artificial intelligence.
California and New York each have their own anti-discrimination and anti-retaliation laws similar to Title VII, the ADEA, and the ADA.
How AI Is Used in Hiring Processes
Implementing AI technology has the potential to automate many HR tasks that are currently tedious and time-consuming.
Currently, AI is used in the following ways in the talent acquisition process:
- Customized job postings: AI can help recruiters create more tailored posts to appeal to different types of applicants.
- Candidate screening: Many recruiters trawl candidates’ online presence to look for potential red flags. AI tools can do this for them, and highlight potential “red flags” that may make a candidate “unsuitable” for the position.
- AI video interviews: Because face-to-face interviews are costly and time-consuming, some recruiters now use one-way video interviews. An AI asks candidates a series of questions as part of the screening process before deciding whether to allow them to progress to a human-to-human interview.
- Screening applications: some employers receive hundreds, if not thousands, of applications in response to a job posting. AI can help companies screen the initial pool of applicants.
This is just a sample of how AI hiring tools are becoming part of modern-day recruitment. However, how compliant are these tools with federal anti-discrimination laws?
AI and Potentially Discriminatory Hiring Practices
While we may think of AI-based tools as faceless machines, they are designed and built by humans. They are trained on large datasets and use the patterns they identify to make decisions when presented with new data, like a batch of resumes.
A literature review published in Nature investigated discriminatory hiring practices resulting from algorithmic bias (bias built into AI systems). It was concluded that they result from “limited raw data sets and biased algorithmic designers.”
Simply put, unconscious bias can creep in during the AI design and training process. This means that AI hiring tools can, and sometimes do, perpetuate bias learned from humans. In fact, AI systems may identify and replicate patterns of discrimination in training data sets that humans did not realize were there.
If this results in discriminatory hiring practices, there could be legal ramifications for employers.
Examples of Potential AI Discrimination
In 2018, Reuters reported that Amazon had scrapped an experimental resume screening program they hoped could be used to score job applicants because the AI algorithms were discriminating against female applicants. According to insiders, the problem was the training data: The past 10 years of resumes submitted to the company were submitted by mostly men. Amazon claimed the tool was not used by recruiters.
In 2022, iTutorGroup Inc., a China-based tutoring company, settled a lawsuit brought by the EEOC over age discrimination by AI hiring tools. The EEOC alleged that iTutorGroup’s AI hiring tools were set up to exclude men aged 60 and over and women aged 55 and over. iTutorGroup agreed to pay $365,000 in compensation to over 200 affected applicants.
The message is clear: AI systems that perpetuate bias and exclude potential employees by discriminating based on protected characteristics are unlawful. If you believe such tools have resulted in discrimination against you, you may have the right to file a lawsuit under current federal and state anti-discrimination laws. Talk to an experienced and tenacious employment law attorney who understands this emerging threat to employees’ rights.
Liability for Discrimination by AI Technology
When automated employment decision tools break anti-discrimination laws, the natural question is: Who is liable?
Each case is unique, and it is vital to seek qualified legal counsel from an experienced employment attorney. However, employers and companies that develop AI technology could face lawsuits if their tools illegally discriminate.
Third-party vendors
In one example, in 2023, Workday, an AI platform for finance and HR, was sued by Derek Mobley under Title VII. Mr. Mobley claimed he was passed over for jobs due to discrimination based on race, age, and health status.
While a federal judge in California dismissed some claims based on intentional discrimination, the court allowed class claims based on “disparate impact” or unintentional discrimination to proceed and affirmed that Workday could be considered an agent of the hiring employers, as it performed screening tasks on behalf of employers. This case is ongoing but could make an important statement about liability for discriminatory hiring practices.
Employers
Employers are also responsible for ensuring they comply with federal and state anti-discrimination laws. Under the legal doctrine of disparate impact, current and potential employees could sue for discrimination based on any protected characteristic, whether the discrimination was intentional or not.
The American Bar Association (ABA) recommends employers take the following steps to minimize the risk of AI discrimination in employment decisions:
- Evaluate the HR vendor’s tools to ensure they comply with anti-discrimination laws and EEOC guidelines
- Ensure the vendor bears liability for discriminatory hiring practices resulting from the AI technology
- Conduct regular bias audits
- Provide advance notice of the use of AI tools to candidates and employees
Failure to protect potential and current employees from discrimination – intentional or not– could leave an employer open to a lawsuit.
The Role of Employment Attorneys
If you suspect you have been discriminated against based on a protected class at any stage, an employment attorney can advise you on your legal rights. AI in the workplace may make the situation more complex, but your employment rights remain the same.
An employment attorney who understands how AI tools can perpetuate bias can do the following:
- Establish whether your employer/potential employer illegally discriminated against you
- Help you decide whether pursuing a claim is in your best financial interests
- Explore your options, including filing a charge of discrimination with a federal agency or pursuing a lawsuit against your employer or a third-party vendor
- Gather evidence and build a strong case to support your claim if you decide to take legal action
- Play hardball at the negotiating table or fight your case in court
An employment attorney will only take on your case if he or she believes it has a strong chance of success. At an initial consultation, you can explain what happened to you and get personalized advice on the best way forward.
Let AMG Law Fight for Your Civil Rights
AI-based tools are here to stay in all aspects of life. However, they must not be allowed to erode our civil rights. Anti-discrimination laws protect us all, and if your rights have been violated by AI hiring tools or other technology, you have the right to fight for justice.
For almost 50 years, the employment attorneys at AMG Law have been fighting and winning for our customers. While technology has moved on, our commitment to justice and fair treatment for all has not changed. We pride ourselves on our diligence, tenacity, and complete commitment to defending the rights of individual clients.
Our team of respected litigators is ready to hear your story. Call 323-653-6530 to schedule a free consultation. Alternatively, reach out confidentially via our online contact form, and we will get back to you soon.