Discrimination in employment: AI changes the Landscape

21 July 2023
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Symmetra wrote very recently about the profound impact which the implementation of AI tools in various aspects of employment will have on issues of discrimination [link here] but since then the landscape in this area has changed significantly.

The US National Artificial Intelligence Act defines AI as “machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments

AI has for years now, been used extensively in recruitment, evaluation, transfer, promotion and dismissal in the workplace but the pace at which AI systems have advanced in just the last six months has had oversight and regulatory bodies scrambling to respond.  Can existing legal and internal disciplinary models cope with the new technology?

Examples of AI systems producing biased or skewed results are well- documented. In 2018 Amazon famously abandoned the use of AI in its recruitment program because it selected males over females. Many other examples have been noted such as facial-recognition cameras evidencing bias when identifying people with dark skin.

Amongst the bodies sounding the alert is the UN Human Rights Council. Its resolution on 14, July, 2023 calls for the” adequate explainability “of AI-supported decisions…” taking into account human rights risks arising from these technologies

Also, in the past month three regulatory bodies in the US (Financial protection bureau, Justice Department and Federal Trade Commission) have issued a joint statement “… On Enforcement Efforts Against Discrimination and Bias in Automated Systems “. It ends as follows: “We. pledge to vigorously use our collective authorities to protect individual rights regardless of whether legal violations occur through traditional means or advanced technologies. “

New York City (Local Law 144), now in force is the first attempt globally to legislate in this area- laying down certain pre-requisites in using AI for recruitment. These are (i) conduct a bias audit prior to use of the tool; (ii)notify candidates that the tool is in use; (iii) outline to candidates the qualifications and characteristics that the tool will use. These are useful baseline points for employers anywhere in the world using AI tools to observe.

Most importantly is the need for organisations, public and private to make it clear both internally and externally that they are being pro-active in their commitments to a workplace characterized by DEI.  AI tools can be useful for cutting down laborious sifting tasks but at the end of the day human oversight is required to ensure that potentiality for unlawful discrimination is minimized whenever decisions are made affecting recruitment, advancement and employee evaluation.