The Auditing Imperative for Automated Hiring

Privacy and Security and Artificial Intelligence

Article Snapshot

Author(s)

Ifeoma Ajunwa

Source

Harvard Journal Law & Technology, Vol. 34, pp. __, forthcoming 2021

Summary

Automated hiring systems are not well understood. Hiring platforms can use proxies for gender and race to facilitate and conceal discrimination. Antidiscrimination law is not designed to address these new issues.

Policy Relevance

Policymakers should subject automated hiring systems to greater oversight.

Main Points

  • Automated hiring platforms can eliminate applicants from protected classes such as gender or race without leaving any record.
     
    • Systems may use proxies for gender or race to disguise discriminatory results as fair.
       
    • Trade secret law bars outside scrutiny of automated hiring systems.
       
    • Workers cannot limit the transfer of data captured by automated hiring systems to other employers.
       
  • Title VII of the Civil Rights Act sets a high bar for employment discrimination suits.
     
    • To win a disparate treatment case, the plaintiff must show that the employer had a discriminatory intent.
       
    • To win in a disparate impact case, the plaintiff must produce statistical proof of disparate impact.
       
    • Because the operation of automated systems is not understood or recorded, automated systems can facilitate and obfuscate discrimination.
       
  • The collection of biometric and personal data from job candidates, especially automated video interviewing, present new privacy and discrimination issues.
     
    • Video interview systems analyze the word choices, speech patterns, and facial expressions of applicants.
       
    • Video analysis systems may perform poorly for candidates from some backgrounds.
       
  • Employer’s affirmative duties of care should include an auditing imperative for automated systems.
     
    • Automated hiring systems should be subjected to internal and external audits, similar to the Occupational Safety and Health audits in labor law.
       
    • Automated hiring systems that pass an audit could receive a “Fair Automated Hiring Mark.”
       
  • Standards for the collection, use, and portability of data collected by automated hiring systems could be set in collective bargaining.
     

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