guest column

Here's what Houston employers need to know about using artificial intelligence in the hiring process

In a guest column, these lawyers explain the pros and cons of using AI for hiring. Photo via Getty Images

Workplace automation has entered the human resource department. Companies rely increasingly on artificial intelligence to source, interview, and hire job applicants. These AI tools are marketed to save time, improve the quality of a workforce, and eliminate unlawful hiring biases. But is AI incapable of hiring discrimination? Can a company escape liability for discriminatory hiring because, "the computer did it?"

Ultimately, whether AI is a solution or a landmine depends on how carefully companies implement the technology. AI is not immune from discrimination and federal law holds companies accountable for their hiring decisions, even if those decisions were made in a black server cabinet. The technology can mitigate bias, but only if used properly and monitored closely.

Available AI tools

The landscape of AI technology is continually growing and covers all portions of the hiring process — recruiting, interviewing, selection, and onboarding. Some companies use automated candidate sourcing technology to search social media profiles to determine which job postings should be advertised to particular candidates. Others use complex algorithms to determine which candidates' resumes best match the requirements of open positions. And some employers use video interview software to analyze facial expressions, body language, and tone to assess whether a candidate exhibits preferred traits.

Federal anti-discrimination law

Although AI tools likely have no intent to unlawfully discriminate, that does not absolve them from liability. This is because the law contemplates both intentional discrimination (disparate treatment) as well as unintentional discrimination (disparate impact). The larger risk for AI lies with disparate impact claims. In such lawsuits, intent is irrelevant. The question is whether a facially neutral policy or practice (e.g., use of an AI tool) has a disparate impact on a particular protected group, such as on one's race, color, national origin, gender, or religion.

The Equal Employment Opportunity Commission, the federal agency in charge of enforcing workplace anti-discrimination laws, has demonstrated an interest in AI and has indicated that such technology is not an excuse for discriminatory impacts.

Discrimination associated with AI tools

The diversity of AI tools means that each type of technology presents unique potential for discrimination. One common thread, however, is the potential for input data to create a discriminatory impact. Many algorithms rely on a set of inputs to understand search parameters. For example, a resume screening tool is often set up by uploading sample resumes of high-performing employees. If those resumes favor a particular race or gender, and the tool is instructed to find comparable resumes, then the technology will likely reinforce the existing homogeneity.

Some examples are less obvious. Sample resumes may include employees from certain zip codes that are home to predominately one race or color. An AI tool may favor those zip codes, disfavoring applicants from other zip codes of different racial composition. Older candidates may be disfavored by an algorithm's preference for ".edu" email addresses. In short, if a workforce is largely comprised of one race or one gender, having the tool rely on past hiring decisions could negatively impact applicants of another race or gender.

Steps to mitigate risk

There are a handful of steps that employers can take to use these technologies and remain compliant with anti-discrimination laws.

First, companies should demand that AI vendors disclose as much as possible about how their products work. Vendors may be reticent to disclose details about proprietary information, but employers will ultimately be responsible for discriminatory impacts. Thus, as part of contract negotiations, a company should consider seeking indemnification from the vendor for discrimination claims.

Second, companies should consider auditing the tool to ensure it does not yield a disparate impact on protected individuals. Along the same lines, companies should be careful in selecting input data. If the inputs reflect a diverse workforce, a properly functioning algorithm should, in theory, replicate that diversity.

Third, employers should stay abreast of developments in the law. This is an emerging field and state legislators have taken notice. Illinois recently passed regulation governing the use of AI in the workplace and other states, including New York, have introduced similar bills.

AI can solve many hiring challenges and help cultivate a more diverse and qualified workforce. But the tools are often only as unbiased as the creators and users of that technology. Careful implementation will ensure AI becomes a discrimination solution — not a landmine.

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Kevin White is a partner and Dan Butler is an associate with Hunton Andrews Kurth LLP, which has an office in Houston.

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Building Houston

 
 

Kelly Avant, investment associate at Houston-based Mercury Fund, shares how and why she made her way into the venture capital arena. Photo courtesy of Mercury

Kelly Avant didn't exactly pave a linear career path for herself. After majoring in gender studies, volunteering in the Peace Corps, and even attending law school — she identified a way to make a bigger impact: venture capital.

"VC is an awesome way to shape the future in a more positive way because you literally get to wire money to the most innovative thinkers, who are building solutions to the world’s problems," Avant tells InnovationMap.

Avant joined the Mercury Fund team last year as an MBA associate before joining full time as investment associate. Now, after completing her MBA from Rice University this month, Avant tells InnovationMap why she's excited about this new career in investment in a Q&A.

InnovationMap: From law school and the peace corps, what drew you to start a career in the VC world?

Kelly Avant: I graduated from Rice University with an MBA, starting scouting for an investment firm in my first year, and by the summer after my first year I was essentially working full-time interning with Mercury. But, I like to tell people about my undergraduate degree in gender studies and rhetoric from a little ski college in Colorado. If you meet someone else in venture capital with a degree in gender studies, please connect us, but I think I might be the only one. I’ll spare you what I used to think — and say — about business students, but I have really come full circle.

I always thought I would work in a nonprofit space, but after serving in Cambodia with the Peace Corps, working for the National Domestic Violence Hotline, and briefly attending Emory Law School with the intention of becoming a civil rights lawyer.I found that time and time again the root of the problem was a lack of resources. The world’s problems were not going to be solved with my idealism alone.

The problem with operating as a nonprofit in a capitalism is you basically always pandering to the interests of the donors. The NFL was a key sponsor of The National Domestic Violence Hotline. The United States has a complicated, to put it lightly, relationship with Cambodia and Vietnam. It became pretty clear that the donor/nonprofit relationship was oftentimes putting the wrong party in the driver’s seat. I was, and still am, very interested in alternative financing for nonprofits. I became convinced that the most exciting businesses were building solutions to the world’s problems while also turning a profit, which allows them to survive to have a sustainable positive impact.

VC is an awesome way to shape the future in a more positive way because you literally get to wire money to the most innovative thinkers, who are building solutions to the world’s problems.

IM: What are some companies you’re excited about?

KA: There are a couple super interesting founders I’ve met directly engaging with . To name a few: CiviTech, DonateStock, and Polco.

I’m very proud to work on mercury investments like Houston’s own, Topl, which has built an extremely lightweight and energy efficient Blockchain that enables tracking of ethical supply chains from the initial interaction.
I’m also excited about mercury’s investment in Zirtue, which enables relationship based peer to peer lending to solve the massive problem of predatory payday loans.

We have so many awesome founders in our portfolio. The best part about working in VC is meeting passionate innovators every day. I get excited to go to work everyday and help them to build better solutions.

IM: Why are you so passionate about bringing diversity and inclusion into Mercury?

KA: I love working with exciting, highly capable, super smart people. That category includes so many people who have been historically excluded. As an investment team member at Mercury, I do have a voice, and I have an obligation to use that voice to speak highly of the best people in rooms of influence.

IM: With your new role, what are you most focused on?

KA: In my new role, I am identifying and researching high potential investments. We’re building out a Mercury educational series to lift the veil of VC. We want to facilitate a series that gives all founders the basic skills to pass VC due diligence and have the opportunity to build the next innovative companies. My goal is ultimately to produce the best returns possible for our investors, and we can’t accomplish that goal unless we’re building out resources to meet the best founders and help them grow.

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This conversation has been edited for brevity and clarity.

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