Use of AI In Employment Decisions: Legal Concerns in Hiring, Performance Management, and Termination

Description

Employers are looking for increased efficiency in their hiring process and examining the possibility of quick, measurable results using AI to help screen applicants. Employers use AI-related data to prescreen resumes and applications, evaluate video-recorded interviews, create work simulations and chatbots, and mine social media to determine applicants' digital footprint. The critical legal question is whether employers use these tools to make decisions about applicants and employees and what impact these tools may have.

Courts and agencies will evaluate AI technology under the foundational equal employment opportunity laws, including Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and equivalent state laws. Enforcement agencies and plaintiffs' attorneys will strive to fit these innovative tools under the existing framework. Employers will have to safeguard against discrimination claims that flow from the use of AI.

Enforcement agencies will evaluate AI tools the same way as any other selection procedure, looking at overall applicant-to-hire for adverse impact and then drilling down into a company's selection procedures. Policymakers and regulators are also concerned about the growing array of new sourcing and recruiting platforms powered by AI and machine learning, as well as algorithm-heavy screening and interview software that analyzes and ranks job applicants.

Illinois currently has a law that regulates this new area of HR technology. The Artificial Intelligence Video Interview Act regulates how employers can use AI to analyze video interviews. A New York City Council bill would require employers to inform job applicants if and how they are using AI technology in hiring decisions. Other cities and states and the federal government have introduced initiatives to study bias in algorithms and the impact of AI on employment decisions. It has been reported that the EEOC is conducting at least two investigations of cases involving alleged algorithmic bias and an EEOC Commissioner stated in September 2021 that the EEOC has begun monitoring employers’ use of this technology in the workplace to ensure compliance with anti-discrimination laws.

Listen as our expert panel guides employment counsel on using AI to manage many facets of the employment lifecycle, including hiring, performance management, and termination decisions.