Artificial Intelligence and the Hiring
The use of Artificial Intelligence (AI) is becoming increasingly prevalent in the hiring process. It is important for workers to be aware of how this impacts them. This page provides information on how AI is being used in the hiring process, its impact on employers and workers, and state laws that have been enacted to protect workers.
What is Artificial Intelligence (AI)?
Artificial Intelligence is the use of computers and machines to mimic the problem-solving and decision-making capabilities of the human mind. AI is most used in industries such as transportation, healthcare, and finance. Since the pandemic, AI has been used in other industries like retail.
How is AI used in hiring?
AI can be used in several ways to expedite processes in the workplace. Internally, AI can be used to scan job applications, recruit, screen, hire, and onboard new candidates. AI tools are trained to recognize similar applicants that have been hired or denied employment in the past, the technology then uses those characteristics to identify applicants for a particular job.
In addition, employers are using video interviews, chatbots, online assessments, and other screening tools to make certain hiring conclusions. Once a candidate has been identified, AI, in the form of chat bots, can be used to automatically reach out to an individual and determine whether the person is available to start on the employer’s preferred timeline or whether the individual is open to commuting.
With video interviews, companies can record answers to questions and upload them to a database for recruiters to later review and compare to answers from other applicants. They also use facial and voice recognition software to analyze body language, tone, and other factors to determine whether a candidate exhibits preferred traits. See this American Bar Association article for more information.
Why are employers using AI in the hiring process?
Involving AI in the employment processes helps human resources professionals sort through many applications efficiently. According to the American Bar Association, using AI allows every resume to be screened and eliminates preferences and biases of recruiters. In addition, some AI services can also save time by analyzing publicly available data such as social media profiles, resumes, and other text-based data submitted by the applicant, eliminating the need for additional assessments.
What are the disadvantages of using AI in the hiring process?
Some argue that AI tools can retain subconscious biases through their design and could perpetuate additional barriers. For example, if an AI tool is fed resumes of people who have previously been hired by a company, and the recruiting departments making the hiring decision harbored subconscious biases and preferences, those biases and preferences could be inherited by the AI tool. In addition, because AI tends to look at experience, it has the potential to overlook, deprioritize, or even reject qualified applicants. See this American Bar Association article for more information.
What federal law regulates AI in hiring?
There is currently no federal law that regulates the use of AI by private companies. However, this is an emerging area of discussion for some lawmakers. As the federal conversation progresses, we will keep you updated on any implemented laws. However, the use of A.I. in the hiring process has implications for Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. See this American Bar Association article for more information on how AI impacts these laws. See workplacefairness.org for more information on discrimination. See workplacefairness.org/discrimination for more information.
The Equal Employment Opportunity Commission launched an initiative on AI fairness to ensure that AI and other emerging tools used in hiring and other employment decisions comply with federal civil rights laws that the agency enforces. See their website for more information.
What state/city laws currently exist to address AI in hiring?
Illinois: In 2019, Illinois passed the Artificial Intelligence Video Interview Act. This law requires employers to disclose when they are using AI in accepting video interviews. Employers must notify/provide applicants the following: 1) AI may be used to determine the applicant’s “fitness” for the position; 2) Information before the interview on how the AI works and how it determines a candidate's “fitness”; 3) Consent from the candidates to be evaluated by AI for the position. Furthermore, under this law, videos may not be shared, and applicants have the option to have their data deleted. See the act or more information.
Maryland: In 2020, Maryland passed HB1202, which prohibits an employer from using facial recognition technology during an applicant’s interview for employment. However, an applicant may provide consent to the technology during the interview. See the law for more information.
New York City, NY: Effective January 1, 2023, New York City employers will be restricted in using AI machine-learning products in hiring or promotion. The law prohibits the use of such tools to screen a candidate or employee for an employment decision unless it has been the subject of a “bias audit” no more than one year prior to its use. A bias audit is an evaluation by an independent party testing the AI tool’s bias based on race, sex, national origin, etc. As a result of the law, employers must maintain the audit on their website.
Furthermore, employers interested in using such tools must first notify each candidate or employee who resides in New York City that an automated employment decision tool will be used in connection with an assessment or evaluation of the individual. See the law on automated employment decision tools for more information.
How can I file a complaint if I believe I was discriminated against during the hiring process by an AI system?
See workplacefairness.org/filing-discrimination-claim for more information on filing a discrimination complaint. If you would like to contact an attorney, see the workplacefairness.org/find-attorney for more information.