Companies and other employers are increasingly turning to artificial intelligence tools to make hiring and other job-related decisions. Generative AI promises to revolutionize human resources (and just about everything else), but it also brings concerns about unintended discrimination on the job.
At first blush, outsourcing decisions to machines may seem like a good way to eliminate bias. The truth, however, is that there is already plenty of evidence that AI is at risk of adopting many of the same flaws humans do in decisions about hiring, firing, layoffs, and promotions. That is because the tech tools are only as good as the data and information on which they are trained. “Garbage in, garbage out” is a phrase often used to describe the situation: If a tool is developed with data and information that bake in stereotypes and biases, it is likely to use those stereotypes in its decision-making.
At Justice Law Corporation, our California discrimination lawyers help working people fight back to protect their rights on the job and ensure fair pay. We are seasoned attorneys who have dedicated our careers to assisting people in discrimination and other cases. Our firm is proud of its track record of success for clients, including numerous settlements and verdicts in pay and discrimination cases.
Just because a company hands over its human resources department to robots, that does not mean it can simply blame AI when it is accused of bias. Here is what working people need to know about AI-fueled employment discrimination.
The Bots are Well Past Screening Resumes
Resume screening is one of the first and most common uses of artificial intelligence in recruiting. AI tools scan thousands of resumes to identify candidates who match job requirements. They also increasingly make automated decisions about whether applicants are good fits, based on keywords, work history timelines, education, and other factors.
Some systems analyze responses to questionnaires or interactions with digital assessments to predict how well an applicant will fit a role or a company’s culture. Others use facial recognition and vocal tone analysis to score interviewees on traits like confidence, empathy, and enthusiasm.
The rise of generative AI – which can make decisions and produce content in response to prompts – has moved tech tools into all kinds of new territory in human resources. AI is now being used to create job descriptions, hiring guidelines, and other policies and procedures. It is also being tapped for performance reviews, layoff and promotion decisions, and flagging workers for termination.
When AI Discriminates
Many people assume that AI-fueled tech tools are neutral. The fact of the matter is that AI does not think for itself. Instead, it learns to make decisions based on the information and data humans provide. If that data reflects past discrimination, bias gets baked into the system.
AI systems are trained on historical data. If a company has historically hired fewer women or people of color, the algorithm may learn to view those groups as “less desirable” and reproduce those patterns, even if the companies using the tech do not intend to perpetuate bias.
Sometimes an AI tool picks up on traits that are correlated with protected characteristics, such as sex or race. Zip codes can serve as proxies for race or socioeconomic status, for instance, while speech patterns or facial expressions in video scoring can reflect cultural differences.
Just look at the experience over at Amazon, one of the country’s largest employers. The company was forced to scrap an AI tool developed to help it recruit workers amid accusations that it systematically discriminated against women for software engineer and other tech jobs.
The tool was reportedly trained to find ideal candidates based on information about people already doing the jobs well at the company. Because that group was overwhelmingly made up of men, the tool allegedly tipped in favor of male applicants. That includes downgrading resumes of applicants from women’s colleges and boosting the scores for those who used certain active words (like “executed” and “captured”) commonly used by men.
Employers are Liable for AI Discrimination
Companies and other employers that use AI tools to make human resources decisions are legally liable when those tools discriminate, even if it is not intentional.
Federal and state laws generally prohibit workplace discrimination and harassment based on:
- Race
- Ethnicity
- Gender
- Age
- Disability
- Pregnancy
- Religion
- Sexual orientation
- Gender identity
- Marital status
Laws on the books in California go further than federal anti-bias laws by covering a wider range of employers and giving employees more time to file claims.
The laws ban direct discrimination against workers, but also forms of bias that lurk beneath the surface. Courts have long recognized “disparate impact” discrimination claims, which arise when a practice or policy that appears neutral on its face unintentionally discriminates against certain groups of workers.
Anyone who has been discriminated against on the job has the right to take action against their employer. You can file claims with the California Civil Rights Department (CRD) and the U.S. Equal Employment Opportunity Commission. You can also pursue a lawsuit against your employer, either individually or as a group.
A class action allows workers to join together in a lawsuit against their employer. These types of suits are common in discrimination cases alleging that an employer’s policy or practice has had a discriminatory impact on a group of workers because of their race, sex, or other protected status.
Our California Discrimination Lawyers Can Help
If you believe that you are being discriminated against on the job, whether it is by being passed over for a position, underpaid in your role, or in other terms and conditions, you do not need to go it alone. A California discrimination lawyer at Justice Law Corporation can help you evaluate your claim and understand your rights and options. Our office is conveniently located in Pasadena. Contact us at (818) 230-7502 to schedule a free consultation with a California discrimination lawyer.
