Without a doubt, artificial intelligence (“AI”) is the future of the workplace. AI has increased productivity and efficiency in nearly every industry. Numerous companies have turned to AI in order to improve their hiring process, which has also been referred to as “AI automation”. Recruiters no longer need to spend countless hours sorting through resumes, calling applicants, and scheduling interviews, as AI is able to instantaneously screen and select applicants that best fit a company’s needs. The use of AI automation in hiring has become even more widely adopted due to the COVID-19 pandemic and employers’ need to rely on virtual job applications and interviews. Employers have never been more reliant on AI technology in the hiring process than they are today.
II. AI Automation and the Impact on Human Rights
However, with this technological revolution comes many questions and potential issues. AI automation may produce, among other things, gender and racial bias in the delivery of online job postings. Biased data, variables, and decisions of employers are often emulated into the programing of their AI hiring systems, rather than eliminated. A recent report published by the Office of the United Nations High Commissioner for Human Rights (“OHCHR”) provides the example, “if a company uses an AI hiring algorithm trained on historic data sets that favour male, white, middle-aged men, the resulting algorithm will disfavour women, people of colour and younger or older people who would have been equally qualified to fill the vacancy.” While many employers may argue for the benefits of AI automation, especially during a pandemic, the risks of bias and discrimination to potential employees is something that cannot be ignored.
Besides the ethical reasons for preventing these immoral hiring practices, instances of AI automation may prove to be illegal in numerous countries around the globe. In the United States, for example, AI automation can implicate the Title VII of the Civil Rights Act of 1964 (“Title VII”), a federal law that protects employees and applicants against discrimination based on certain specified characteristics such as race, color, national origin, sex, and religion, as well as the Age Discrimination in Employment Act (“ADEA”). Further, the use of AI automation could implicate the Americans with Disabilities Act (“ADA”) if an algorithm discerns an applicant’s physical disability, mental health, or clinical diagnosis, all of which are forbidden inquiries in pre-employment candidate assessments.
III. Spain’s Potential Solution through the Carta Derechos Digitales
While there is no clear solution to prevent the improper use of AI automation, Spain is one country that has led the way in recognizing this problem and providing a proposal to protect individuals from employer bias and discrimination. On July 14, 2021, Spanish President Pedro Sánchez announced the publication and adoption of the Carta Derechos Digitales, or the Digital Rights Charter (“Charter”). The Charter outlines six fundamental rights for the digital world: (1) the right of freedom; (2) the right of equality; (3) the right of participation and shaping the public space; (4) the right of the working and business environment; (5) digital rights in specific environments: and (6) rights of guarantees and efficiencies. The aim of the Charter is to protect the rights of citizens in this new era of AI where these rights present current and extremely serious vulnerabilities. Beginning on June 15, 2020, the drafting process included, not only, the advice and proposals of a group of digital rights experts but also public citizen’s contribution through an open participatory process. While the Charter is not regulatory in nature, it proposes a framework of reference that can be used by the public in navigating and taking advantage of the new digital world. The “pioneering nature” of this Charter relates to rights related to AI, algorithmic non-discrimination, and for an individual to request human oversight or intervention. These rights are broadly applicable to many areas within the digital environment, yet the rights from an employment law perspective stand out. Specifically, the development and use of AI algorithms in the workplace require a data protection impact assessment. This assessment would need to analyze the risks related to the ethical principles and rights related to AI automation hiring, such as the gender perspective and the prohibition of direct and indirect racial discrimination. The Charter provides clear guidance of how employers can steer clear of impermissible hiring practice while using AI automation.
Following the lead of Spain, countries and unions around the world now acknowledge the problem of AI automation and are working towards possible solutions. In April 2021, the European Commission proposed a regulatory framework on AI as a part of wider overall individual protection package. The proposed regulation identifies certain AI systems and technologies by their level of “risk” and subjects them to certain obligations before being introduced to the public. Employment, workers management, and access to self-employment are considered “high-risk,” and the proposed regulation even provides the example of “CV-sorting software for recruitment procedures”. Being a “high-risk” AI system, these recruitment procedures will be subjected to strict obligations, such as risk assessment, high quality datasets feeding the system to minimize discriminatory outcomes, and appropriate human oversight. These obligations flow almost directly from the Charter that was proposed nearly a year earlier, and there is reason to believe European Commission may have looked to Spain for guidance.
The United States is also following Spain’s lead, by ensuring AI automation will not be improperly used in any employment setting. In September 2021, the Equal Employment Opportunity Commission (“EEOC”) announced that it would be monitoring employers’ use of AI in the workplace to ensure compliance with anti-discrimination laws. The EEOC recognizes the potential of AI automation introducing unlawful bias in candidate sourcing, resume screening, and video interview analysis. While the EEOC has expressed its awareness of these issues, it has not yet issued written guidance on the use of AI automation in employment decisions. The EEOC has even acknowledged that the most relevant document, the 1978 Uniform Guidelines on Employee Selection Procedures, is more than 40 years old. Clearly, the U.S. is in need of updated procedures and formal written guidance in the wake of AI automation.
The possibility of employee bias and discrimination in AI automation is widespread and may only be prevented if action is taken and employers are put on notice. As AI automation and other technologies become more advanced, individuals will need to rely on charters, such as the Carta Derechos Digitales, to guarantee their rights are protected.
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