The age of Artificial Intelligence is here. Advancements in AI has, and will continue to, revolutionize the way our world works. The workplace is no exception. With increasing frequency, companies are turning to artificial intelligence to optimize their business operations.

Human Resources is one arena with a notable, and growing, artificial intelligence presence. According to data collected in 2022 by the Society for Human Recourse Management, roughly 25% of companies, ranging from 2 to 5,000 employees, are using artificial intelligence to support their HR work. Human Resources AI systems help companies with a range of work, including but not limited to, recruitment, hiring, training, productivity monitoring, employee evaluation, promotion decisions, and performance management. We can confidently assume that the use of AI programing will continue to grow in the coming years.

AI is a powerful tool that can be used to boost efficiency, but it’s use also raises key ethical considerations. It is in our best interest to understand the developments in technology, learn about the ways we can benefit from the tools, and stay aware of challenges that might arrive. In this article we will review the common uses of AI in Human Resources work, it’s intended uses, and the ethical and legal challenges that it poses for employers and the workforce.

Human Resources departments are using AI to streamline the recruitment process, screening, hiring, and onboarding processes through automated decision-making. This arguably will allow companies to fill vacancies with well qualified candidates more efficiently, bypassing the traditionally time-consuming tasks of resume screening, skill set reviewing, and the time spent schedule interviews. AI technologies also boast to be able to accurately assess top talent and favorable personality traits of candidates by implementing gamified assessments and predictive analytics. Once a new employee is onboarded, AI can also be used as a training tool for new employees. Past the initial phases of employment, Human Recourse departments are using AI to monitor employee work product and “efficiency,” which is data that can impact review, promotion, and payment decisions.

While it can provide some benefit, AI comes with significant risks in the Human Resources field. It is important that both employers and employees are aware of these challenges.

Artificial intelligence and machine learning is data-driven, limited by the information it sources from and the algorithms it is provided. As a result, if AI is making judgements and decisions based on an inaccurate, incomplete, or biased set of data, it will replicate those patterns. Employers must be aware of the limitations of AI models when using it to evaluate the performance of employees as it may be reproducing patterns of unconscious bias, and thus operating in a discriminatory fashion. If an employer is using an AI that is shown to be biased, the employer may be liable for discrimination.

These limitations can be particularly perilous during the recruitment and hiring process. Title VII of the Civil Rights Act of 1964 makes discrimination in hiring unlawful. The CRA specifies that both policies that are intentionally discriminatory (“disparate treatment”) and policies that are facially neutral but unintentionally adversely impact a protected class (“disparate impact”) are unlawfully discriminatory. In the case of AI, if an AI tool unintentionally screens out members of a protected class based on the data set it was provided, it could disproportionally impact members of that protected class. For example, if a company employs 80 men and 20 women, the AI tool could disproportionately screen out women in the talent pool during the hiring process in an attempt to provide candidates that resemble the company’s workforce. Beyond hiring, AI is at risk of using bias when making decisions about merit-based reviews, bonuses, raises, and promotions.

In addition to potential bias, AI raises other issues regarding surveillance and data privacy – read more about further AI challenges here.

Laws specifically regulating the use of AI at work are limited, and employment law will continue to adapt as the use of AI continues to become mainstream. Currently, lawyers and regulators are relying on existing anti-discrimination laws to regulate the use of AI by Human Recourses departments. In 2022 the Equal Employment Opportunity Commission released guidance specifically addressing AI and emphasizing that employers are liable for any desperate impact caused by their use of AI tools.

In California, employers using AI must inform their employees about the use and scope of the AI, and employees have the right to opt out of interacting with the AI tool without repercussion. On February 15, 2024, lawmakers in California proposed Assembly Bill 2930, which aims to combat “algorithmic discrimination.” The bill would apply to “automated decision tools,” such as those used by HR departments, that make “consequential decisions,” specifically including any decisions related to employment. We can expect that AI related laws will continue to be introduced in coming years.

Employers have been subject to lawsuits in recent years regarding disparate discriminatory impact caused by their AI hiring tools. Suits have been brought claiming that AI hiring models violate Title VII of the CRA, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and equivalent state laws.

The law protects employees and potential employees who report unlawful discrimination at work. If you make a complaint regarding discrimination or the misuse of AI at work, resist unlawful use of AI in the workplace, or participate as a witness in a related complaint, your employers may not treat you unfavorably as a result. If your employer or future employer has treated you differently because you reported or resisting any violation, your employer has retaliated against you and broken the law. 

If you have questions about the role of AI in your workplace or in a hiring process, contact Avloni law. We have experience representing employees dealing with a range of issues including discrimination in hiring and employment, and are well equipped to advise on matters involving the use of AI. We believe that everyone deserves the right to fair work opportunities, and do not shy away from holding powerful companies accountable. If you believe you may be facing unlawful challenges, contact Avloni Law.