Discrimination has been an issue with hiring for decades. With each state passing their own laws and regulations, keeping abreast of required changes can wreak havoc on companies requiring constant changes in rules regarding hiring practices and discrimination. In recent years, with AI helping companies post job descriptions, screen applicants and evaluating performance, issues have arising regarding intended or unintended bias.
In a lawsuit brought before California’s federal court, the plaintiff sued the Workday career placement company on grounds of discrimination. The plaintiff is over the age of 40, a minority, in this case black and has been diagnosed with anxiety and depression. This suit is specifically using Title VII of the Civil Rights Act, Age Discrimination Act and the Americans with Disabilities Act (ADA). According to Matt Scherer, senior policy counsel for Workers' Rights and Technology at the Center for Democracy & Technology, "I haven't seen a lawsuit against a vendor of automated employment decision tools that is as wide-ranging as this one… It presents some interesting legal questions ... that no court has addressed, as far as I know."(1)
Discrimination varies by state, with some like New Jersey having over twenty classes of discrimination. In the Workday Career Placement Company case, the three laws cited are three of the most common types. Title VII in this case concerns racial discrimination, something that is unfortunately common. The Age Discrimination Act is normally used for those who are either in their advanced years or very young while the ADA concerns disabilities from physical to mental.
In California, there are numerous classes of discrimination. According to the society of Human Resource Management, California fair employment laws prohibit discrimination based on race (including hair texture/style), age (40 and over), ancestry, color, religious creed (including religious dress and grooming practices), or any other characteristic protected by state, federal or local law in terms and conditions of employment. These laws extend to, among others:
- Internal and external recruiting.
- Application for employment and interviewing/selecting candidates for employment. See What questions are employers in California prohibited from asking applicants?
- Pre-employment testing.
- Background investigation. See What are the California rules regarding employer use of an outside agency to perform background checks, and how do they differ from federal law?
- Hiring. See Managing the Hiring Process in California. (2)
In this case, the suit is targeting Workday, an employment placement firm site like Indeed or Monster. The suit contends that when they send out the plaintiff’s resume, employers are seeing certain information which is normally supposed to be private, and applicants may get turned down based on this information. Such information can range from the college they attended, to work history and even their name and can be seen as flags for employers to turn them away. While they contend that as employment placers they should not be held to the rules regarding discrimination, some lawyers and the EEOC contend they do because at the end of the day, “entities that regularly procure employees for employers," are within the scope of federal employment laws, according to the U.S. Equal Employment Opportunity Commission.”
Speaking of the EEOC, they are in the middle of rolling out new protections for discrimination over the next five fiscal years. One of the things they addressed is the rise of AI in the hiring process, especially with job placement sites like Workday. In a memo dated January 10th, The Draft SEP sets out the EEOC’s six subject matter priorities for fiscal years 2023-2027:
- Eliminating Barriers in Recruitment and Hiring;
- Protecting Vulnerable Workers and Persons From Underserved Communities From Employment Discrimination;
- Addressing Emerging and Developing Issues;
- Enforcing Equal Pay Laws;
- Preserving Access to the Legal System; and
- Preventing Harassment Through Systemic Enforcement and Targeted Outreach.(3)
With new AI based search tools, the EEOC has found it prudent to try and tackle these formerly unknown was of discrimination by making sure that recruiters can follow the same guidelines as employers.
This case will be an interesting challenge for the courts for two reasons. The first is that there’s no current precedent for cases like this regarding holding such third parties using AI for evaluation accountable for discriminatory practices. This case will be precedent setting. Job placement sites may need to review how they place their applicants to comply with federal regulations if its proven that their algorithms are inadvertently causing bias with their potential targets.
