The Equal Employment Opportunity Commission has issued new guidance on the use of so-called “Artificial Intelligence” or AI software in making employment decisions. This guidance seeks to explain how this sort of software can be used in an employment context, and is meant to help employers learn how to use AI without running afoul of the law. Employers should be careful when using AI tools to respect labor and employment law, and to avoid infringing on the rights of workers.
What is Artificial Intelligence (AI)?
Artificial intelligence (also known as AI) refers to a type of sophisticated software that uses complicated equations, known as algorithms, to detect patterns and solve problems. For example, a simple form of AI has been used in many smartphones to help automatically complete sentences and detect the next word you will likely use. Employers have also increasingly used this software to help make decisions about who to hire, fire, or promote.
Why Are Employers Using AI in Their Employment Decisions?
Employers have increasingly turned to AI as a means of making employment decisions for a number of reasons, not the least of which is that it is relatively cheap and easy. Rather than hiring people to spend hours upon hours sorting through job applications, for example, they can just have the computer do it for them, automatically discarding people who do not match certain parameters. It can also, in theory, potentially help avoid discrimination because the AI does not carry explicit bias towards candidates based on their race, sex, religion, nationality, or other similar factors.
What is the Problem With Using AI?
Unfortunately, that is only how AI operates in theory. In practice, artificial intelligence is perfectly capable of discriminating against candidates for hiring and promotion, if the criteria it uses to judge appropriate candidates are discriminatory (for example, filtering out candidates from certain ZIP codes that are more likely to be non-white). Just as AI lacks the ability to discriminate against job candidates, it also cannot discern when discrimination may have taken place, and lacks the ability to make its own value judgments outside of the criteria given to it by its programmers.
What Happens if an Employer is Using AI for Their Employment Decisions?
If an employer is using AI to make decisions about hiring, firing, or promoting employees, there may be a serious risk of discrimination. This is why employers should always audit the software they use to make these decisions to ensure they are compliant with Title VII and ADA requirements, as well as other labor and employment laws. If an employer fails to do their due diligence, they may open themselves up to complaints, investigations, or lawsuits, and the fact that AI made the decisions instead of a human being will not protect them from liability.
Steven Mitchell Sack, the Employee’s Lawyer, is a New York employment lawyer with more than 42 years’ experience handling the many aspects of employment law. His new book, “Fired!: Protect Your Rights & FIGHT BACK If You’re Terminated, Laid Off, Downsized, Restructured, Forced to Resign or Quit,” is available in hardback, and contains valuable advice on dealing with employment and labor law issues. To purchase the book, feel free to contact Steven Sack at 917-371-8000 or visit the website at legalstratpub.com. To inquire about a legal matter, please feel free to contact attorney Steven Sack at 917-371-8000 or stevensackatty@hotmail.com.
