By Paulyna Garcia

The Law Students on Workers’ Rights series publishes essays from current and incoming students at some of the top law schools in the country. These essays, submitted for the Charles E. Joseph Employment Law Scholarship, address the question “What are the biggest challenges facing workers’ rights in the future?”

The introduction of artificial intelligence into the workplace for the sake of revolutionizing hiring practices has been met with scrutiny. Human resource practitioners are increasingly delegating tasks such as recruitment, resume screening, determination of compensation, scheduling, working conditions, promotions, and automated video interviews to artificial intelligence tools. Although this may seem efficient, the ambiguity surrounding these machine learning algorithms can be used to obscure or even perpetuate existing discrimination and create new discriminatory barriers to jobs. 

Artificial intelligence is a branch of computer science devoted to creating machines capable of simulating the human intelligence necessary to perform certain tasks. Due to a lack of precedence in the workplace, there are hardly any rules surrounding its use. In a similar manner to regular employment policies, artificial intelligence tools can fail to obey civil rights laws by reinforcing bias or screening out candidates of protected classes including race, sex, national origin, or religion. 

As regulators and lawmakers attempt to determine how to address this issue, employees are left to endure the negative consequences of an employer’s use of artificial intelligence in hiring practices. Companies as prevalent and resourceful as Amazon have been discovered engaging in such discriminatory practices all due to their artificial intelligence tools. In 2018, Amazon’s artificial intelligence software was found downgrading resumes that included the word “women” and candidates from all-women’s colleges because, at that point in time, Amazon did not have a history of hiring women as engineers and computer scientists. Also in 2018, Microsoft’s facial recognition software which analyzed candidates’ emotions for desirable traits associated more negative emotions with African American males than with their white peers. 

When left unregulated, these biases result in a violation of workers’ fundamental rights. Since some human resource practitioners may not even be aware of what algorithm the artificial intelligence tools are using during hiring practices, they may not even recognize that such discriminatory practices are happening in their own company. Nevertheless, it is essential that regulators and lawmakers address this problem. 

In February 2019, New York City enacted bill NY S.B. 3971 which created a temporary state commission intended to study the use of artificial intelligence in hiring practices and other human-resource-related decisions. On November 15, 2021, a law was passed in New York City requiring that employers and employment agencies using automated employment decision tools meet strict requirements. Amongst those strict requirements is the annual bias audit. This new law, which takes effect on January 1, 2023, bans employers from using automated employment decision tools to screen job candidates unless the technology has been subject to a bias audit conducted at least one year before use of the tool. 

Despite the attempts of regulators and lawmakers to achieve an understanding surrounding the fairness and ethical issues of these practices, they will continue to pose a threat to the civil rights of many workers. Although New York City has made great strides toward addressing this problem, a majority of states have not, and workers will continue to endure the consequences and bias stemming from employers using artificial intelligence in hiring practices. 

Even if more states follow New York City’s lead, it would only be a partial solution because of the bill’s shortcoming in the design and execution of the discrimination audits. Although the audit is based on factors like race and gender, certain traits such as disability and age are not covered within the scope of the audit requirements. Moreover, the law applies only to the hiring process, so artificial intelligence could still be used in an unregulated manner when determining compensation, scheduling, working conditions, and promotions. Finally, employers may use such audits as an endorsement of their “fair” practices, when these audits do not fully resolve this problem. Rather than stop discrimination, weak courses of action will encourage more companies to use biased artificial intelligence tools. 

As the use of artificial intelligence tools in hiring practices soars, this issue is one that will continue to grow in importance and that will continue to threaten the civil rights of many workers. It is evident that any steps towards anything resembling more than a partial solution will take years if we are lucky. As a response, we must stand up for ourselves and fight against discrimination in the workplace. We must challenge those who view this treatment as appropriate and most importantly, remain unified in this confrontation against discriminatory practices. 

 

Reflections from Charles Joseph

In her insightful essay, Paulyna Garcia identifies an emerging threat to workers’ rights. And the use of AI in hiring can create invisible workplace discrimination. While workers in NYC will have some protection from the new law, which begins in 2023 and covers race discrimination and gender discrimination, the provisions leave out other types of discrimination, most notably age discrimination and disability discrimination.

As Garcia notes, AI could easily downgrade resumes based on age with workers and even HR professionals unaware of the harm. While the legal remedy for discrimination caused by algorithms may seem out of reach today, it’s critical that workers and their advocates continue to fight for fair treatment.

Paulyna Garcia holds a bachelor’s degree in civil engineering from the University of Nevada, Las Vegas. In the fall, she will join the William S. Boyd School of Law at the University of Nevada, Las Vegas as part of the class of 2025. Garcia is the winner of the Charles E. Joseph Employment Law Scholarship for the 2022/2023 academic year.

Charles Joseph has over two decades of experience as an NYC employment lawyer. He is the founder of Working Now and Then and the founding partner of Joseph and Kirschenbaum, a firm that has recovered over $140 million for clients.

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