It’s becoming increasingly more common for employers to use artificial intelligence (“AI”) in the hiring process. Title VII of the Civil Rights Act prohibits discrimination by employers on the basis of race, color, religion, sex, or national origin. Under Title VII, employers cannot use neutral tests or selection procedures that disproportionately exclude persons covered under Title VII, if the tests or selection procedures are not “job related for the position in question and consistent with business necessity.” 42 U.S.C. Section 2000e-2(a).

Employers often times rely on different types of software that incorporate algorithmic decision-making at several stages of the employment process. Examples include:

  • Resume scanners that prioritize applications using certain keywords.
  • Employee monitoring software that rates employees on the basis of their keystrokes or other factors.
  • “Virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements.
  • Video interviewing software that evaluates candidates based on their facial expressions and speech patterns.
  • Testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit”. This is based on their performance in a game or on a more traditional test. Each of these types of software might include AI.

Although these new AI tools are intended and promoted to make human resource work easier, employers using AI decision-making tools, to make or inform decision about whether to hire, promote, terminate, or take similar actions towards applications or current employees may run afoul of Title VII. This may result in individual employment claims or class actions.

How can an employer protect themselves?

  1. The Equal Employment Opportunity Commission (EEOC) recommends that employers ask third-party AI vendors whether steps have been taken to evaluate if use of the tool causes a substantially lower selection rate for individuals with a characteristic protected by Title VII.
  2. Discuss the vendor’s AI program with an attorney and determine whether the program may result in a disparate outcome.

Below is a link to the Equal Employment Opportunity Commission (EEOC) technical assistance document which outlines the EEOC’s concerns over the use of AI in the hiring process.

For more information, contact a Marsh McLennan Agency (MMA) advisor.

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