The Risks of Deploying Artificial Intelligence to Make Decisions in the Workplace
"Artificial Intelligence" (AI) generally refers to computer technology that uses algorithms to perform specific tasks that typically require human decision-making. In the world of labor and employment, AI can be directly applied to workplace functions. This technology may, for example, assist employers with specific functions, such as the recruiting and hiring of new employees by analyzing the content of their resumes. AI can also be used to identify the aptitudes of a job seeker, predict job performance, or even evaluate an applicant's attention span. While most people would expect that the use of AI in this context would effectively eliminate bias, it is not without risk. It is possible that an employer's use of AI to review job applicants could give rise to legal claims that allege employment discrimination.
How AI Can Perpetuate Historic Bias
When employers use AI in the recruiting process, technology performs a method of analysis designed to replicate human decision-making. Many new hiring systems use AI technologies to filter through the plethora of resumes submitted by online. It is not unusual for employers to utilize AI résumé-screening tools and online assessments to automate the multiple stages of the application process. Employers may use it to examine applicants by measuring their abilities rather than relying on traditional methods to assess talent, such as education, experience, referrals, or recruiting from competitors. In using this methodology, it is possible that AI technology can discriminate against particular groups of job seekers by emulating human behavior. Ideally, employers should seek to hire new talent based on the analysis of job-related criteria. But when designers create systems based on the employer's desire to automate and replicate their previous hiring decisions, discriminatory measures can be developed and coded into algorithmic models. As a result, the technology's design can perpetuate an employer's history of bias.
The Biden Administration Seeks to Preserve Civil Rights
The Biden administration contends that among the many significant challenges posed to our democracy is the use of AI and how this technology may threaten the rights of the American people. The government is concerned that these tools may have the capability to limit opportunities and prevent access to critical resources or services. Problems of this nature are well-documented, and in our country and across the globe, systems have been designed that assist with patient care have proven unsafe, ineffective, or biased. The algorithms used in the employment sector, specifically regarding hiring and recruitment, have also been found to reflect and reproduce existing inequities or to embed new biases and forms of discrimination.
But harmful outcomes are not inevitable, and automated systems have also been developed to generate extraordinary benefits. These include new technologies that help farmers grow crops more efficiently, computers that predict weather patterns, and algorithms that can identify the systemic imbalances that when left undetected and untreated can lead to potentially fatal diseases. These technologies, and the data it produces, have driven decision-making processes across all sectors and have revolutionized global industries. Energized by the force of American innovation, these technologies have the potential to redefine every aspect of our society and create a better world.
The Biden administration has warned, however, that as important as technological advances have become, they must not be used at the price of our civil rights, democratic values, or the foundational American principles. In his first week as Commander in Chief, the President ordered the entire Federal government to work to establish fairness in decision-making processes and advance civil rights, equal opportunity, and racial justice.
The Artificial Intelligence Bill of Rights
In 2022, the White House also issued an Artificial Intelligence Bill of Rights as a guide designed to reinforce our country's highest values. The intention of this initiative is to ensure that artificial intelligence technology is safe and equitable across the workplace and various sectors of society. To promote the President's vision, the White House Office of Science and Technology Policy has established fundamental principles to guide the design, use, and deployment of automated systems that will protect Americans in the age of artificial intelligence. The framework was built in response to the experiences of the public sector and from the insights of researchers, technologists, journalists, and policymakers. It is a handbook intended for employers and organizations who wish to incorporate these protections into their internal policies and practices.
The EEOC and the Artificial Intelligence and Algorithmic Fairness Initiative
Ms. Charlotte A. Burrows was nominated by President Biden, and she is the current chair the Equal Employment Opportunity Commission (EEOC). Ms. Burrows has launched a program within the Commission called the Artificial Intelligence and Algorithmic Fairness Initiative. The program is designed to:
Obtain technical assistance to establish algorithmic fairness regarding the use of AI in all employment-related decisions.
Identify best practices in the use of AI.
Hold sessions with critical stakeholders about algorithmic tools and their ramifications regarding employment.
Gather information about hiring and other employment-related technologies' design, implementation, and impact on job applicants.2
The Initiative on Artificial Intelligence and Algorithmic Fairness was developed to ensure that software, including artificial intelligence (AI) and other emerging technologies used in hiring, recruitment, and other employment-related decisions, comply with the laws that the EEOC enforces. While AI systems may provide new opportunities for employers, the technologies also may have the potential to discriminate. Through the initiative, the EEOC will closely examine how existing and developing technologies change employment decisions. The initiative aims to ensure these technologies are used fairly and consistently with federal equal employment opportunity laws.
About EEOC Chair Charlotte A. Burrows
Chair Burrows is an American attorney who has long been a powerful advocate for strong civil rights protections. She has actively led cooperative efforts between the Commission, employers, and employees to further equal opportunity in the workplace. She has sought to enhance the Commission's enforcement of all laws within its jurisdiction, particularly on initiatives to prevent harassment, foster pay equity, and advance diversity and inclusion. Chair Burrows has also expressed a keen interest in the impact of technology on civil rights and employee privacy.
Before being appointed to the EEOC, Chair Burrows served as Associate Deputy Attorney General at the U.S. Department of Justice. She worked on various legal matters, including employment litigation, voting rights, racial profiling, and implementing the Violence Against Women Act. Chair Burrows previously served as the General Counsel for Civil and Constitutional Rights on the Senate Judiciary Committee and the Senate Committee on Health, Education, Labor, and Pensions. She received her undergraduate degree from Princeton University and her J.D. from Yale Law School.
The EEOC Seeks to Prevent AI From Becoming a Discriminatory Barrier
EEOC Chair Charlotte A. Burrows said,
"Artificial intelligence and algorithmic decision-making tools have great potential to improve our lives, including employment. At the same time, the EEOC is keenly aware that these tools may mask and perpetuate bias or create new discriminatory barriers to jobs. We must work to ensure that these new technologies do not become a high-tech pathway to discrimination. Bias in employment arising from using algorithms and AI falls squarely within the Commission's priority to address systemic discrimination. While the technology may be evolving, anti-discrimination laws still apply. The EEOC will address workplace bias that violates federal civil rights laws regardless of the form it takes. The agency is committed to helping employers understand how to benefit from these new technologies while complying with employment laws." 1
New Legislation Will Regulate the Use of AI in the Workplace
While several states have already enacted measures to regulate the use of algorithms in the workplace, other states are anticipated to propose legislation regarding AI. It will also be interesting to watch how the U.S. courts analyze employers' use of AI in connection with their decision-making processes and instances where there are allegations of discriminatory intent under the existing federal and state anti-discrimination laws.
Conclusion
New legislation and the implementation of fairness in the design of AI are still in the developmental stages. But until employers are bound by law to prevent AI from committing acts of discrimination in the workplace, companies must rally against unfair practices in the AI technology they currently use. When deployed thoughtlessly, AI has the capacity to embed persisting disparities and further the discriminatory practices that encumber the progress of groups who are already disadvantaged. When AI is used with a heightened degree of forethought and the humane consideration necessary to maintain the well-being of protected classes, AI technology can achieve great strides in the workplace. If we begin by bringing employers, lawyers, tech developers, computer and data scientists, industrial and organizational psychologists, and other social scientists into the conversation, we can explore the necessary strategies to ensure fairness and equity in the use of hiring algorithms and AI. What is truly important here is for all stakeholders to work together for the betterment of society and strive to design and implement AI in such a way that it functions as a means to further inclusiveness, diversity, and fairness in the workplace.
More About the Risks of AI in Recent News
On March 29th, MSN reported that hundreds of tech giants and researchers issued their concerns about the use of artificial intelligence and urged labs to immediately stop training AI systems with human-competitive intelligence. In an open letter published by the nonprofit Future of Life Institute, the group pleaded for an immediately stop to the "out of control" advanced AI race for six months to make sure all systems are safe, or face "profound risks to society and humanity." The letter to AI labs was signed Wednesday by Elon Musk, Apple co-founder Steve Wozniak and politician Andrew Yang, and more than 1,300 other well-known tech experts. The letter criticizes AI labs for failing to accomplish adequate planning and management and called for a pause of "at least 6 months" on the training of "AI systems more powerful than GPT-4." It is no secret that AI labs have been competing to develop and deploy digital minds that no one completely understands no one can predict or control.”.” The letter also encouraged state and federal government entities to intervene and issue a moratorium because "Advanced AI could represent a profound change in the history of life on Earth and should be planned for and managed with commensurate care and resources.” The reasoning of these tech leaders is quite simple; “The experimental processes associated with AI should be halted immediately in order to ensure that all future systems are safe.” In addition, the letter stated that, "Powerful AI systems should be developed only once we are confident that their effects will be positive, and their risks will be manageable.”3.
Resources Used
Charlotte A. Burrows, Chair | U.S. Equal Employment Opportunity Commission (eeoc.gov)
Artificial Intelligence and Algorithmic Fairness Initiative | U.S. EqualEmployment2. Opportunity Commission (eeoc.gov)
Elon Musk, tech leaders call for pause in AI race to prevent risk to 'humanity' (msn.com)
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Natalie R. Lynch, a business and employment law attorney in Austin, Texas, who has demonstrated expertise in workplace investigations, employment law, and entity formations. Credentialed through the Association of Workplace Investigators (AWI), Ms. Lynch is the only consulting and credentialed expert in Central Texas who investigates allegations of harassment, discrimination, and hostile work environment. As a credentialed dispute resolution mediator, she routinely collaborates with general counsel, internal and external counsel, employment litigators, employment generalists, and senior human resources professionals. With her extensive business background and solution-focused, purposeful, no-nonsense approach, Natalie excels at:
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