Algorithmically Excluded Part I: The robots have landed: Defining AI in the employment context.

By Anthony May

This three-part blog series will discuss the use of AI in employment, the discriminatory impacts of such technology, and the legal rights of employees or prospective employees to be free from such treatment. Part I will define what we mean by “AI” and discuss some of the ways employers use technology in the workplace. Part II will discuss the discriminatory impacts—intentional or otherwise—that can result when employers rely on such technology and steps taken at the federal and state levels to combat those potential discriminatory outcomes. Part III will serve as a guide for employees or prospective employees to know and assert their rights when they have been adversely affected by AI.

Part I: The Robots Have Landed – Defining AI in the Employment Context

Despite your feelings on controversial public figure Elon Musk, one of his recent quotes should give all of us some cause for concern: “[Artificial Intelligence, or AI] doesn’t have to be evil to destroy humanity – if AI has a goal and humanity just happens to come in the way, it will destroy humanity as a matter of course without even thinking about it, no hard feelings.”

Musk’s commentary is all the more prevalent in the employment context. In recent years, AI has emerged as one of the leading forms of technology being utilized by employers to streamline hiring and retention processes across the globe. But with great technology comes great responsibility, and these emerging trends have resulted in issues that touch upon the potential negative—and discriminatory—impacts of AI in the workplace.

In a recent segment, late night host John Oliver discussed the emerging use of AI in a variety of contexts, from “self-driving cars, to spam filters, to . . . creepy training robots for therapists.” For instance, the internet has become obsessed with ChatGPT, a program that will take a written prompt and generate human-sounding writing in various forms and styles. As Oliver explains, this technology is not just a novelty. In January 2023, Microsoft announced a multiyear, multibillion-dollar investment with ChatGPT creator OpenAI to “create new AI-powered experiences[.]” But what exactly is AI and how does it fit into your daily work life?

In the National Defense Authorization Act for Fiscal Year 2021, Congress defined Artificial Intelligence as “a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments.” Among other things, AI can be used to “perceive real and virtual environments,” “abstract such perceptions into models through analysis in an automated manner,” and “use model inference to formulate options for information or action.” In other words, the future is here, and employers have in the last few years turned to AI as a critical tool in hiring and retaining workers. That is, while some might initially believe that AI is here to take jobs, it is, more recently, being used to make decisions about who will get and hold those jobs.

A February 2022 survey from the Society for Human Resource Management (SHRM) reported that nearly one in four organizations use automation in the hiring process. For example, predictive algorithms, or “supervised machine learning,” a subfield of AI, are routinely used to analyze resumes for certain attributes that could result in a potential viable candidate. As the American Bar Association explained, employers can also use AI in video interviews to “evaluate a candidate’s stability, optimism or attention span.” Third-party vendors like ZipRecruiter utilize such technology for the benefit of employers. ZipRecruiter’s CEO, Ian Siegel, has estimated that “at least three-quarters of all resumes submitted for jobs in the US are read by algorithms.”

AI is similarly utilized by employers to conduct job reviews and make decisions about which employees should be retained. Companies have started using AI to collect data on employee performance and output, and this data is then considered by the employer in determining whether an individual falls above or below expectations. But there are pros and cons to using such tools, and although an employer can eliminate human error and biases from a supervisor’s personal or perceived animus toward an employee, AI also does not account for the personal characteristics of the employee, such as the presence of a disability, that are not only beyond the employee’s control, but have little or nothing to do with the essential functions of the employee’s position.

Whether used to evaluate and select candidates from a pool or assess existing employees, AI in employment is here. But while business leaders laud the use of AI to increase efficiency in hiring, in reality, AI technology has the potential to perpetuate prejudices that disproportionately discriminate against protected classes in the hiring process, destroying the inherent humanity involved in providing people equal access to employment opportunities. If you have questions about this matter or feel like you’ve been subject to discrimination in the hiring process, please contact us today for a consultation.

Authored by

Anthony May Partner