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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With this new grant, UH has a new center for researching bioactive materials crystallization. Photo via UH.edu

A new hub at the University of Houston is being established with a crystal-clear mission — and fresh funding.

Thanks to funding from Houston-based organization The Welch Foundation, the University of Houston will be home to the Welch Center for Advanced Bioactive Materials Crystallization. The nonprofit doled out its inaugural $5 million Catalyst for Discovery Program Grant to the new initiative led by Jeffrey Rimer, Abraham E. Dukler Professor of Chemical Engineering, who is known internationally for his work with crystals that help treat malaria and kidney stones.

“Knowledge gaps in the nascent and rapidly developing field of nonclassical crystallization present a wide range of obstacles to design crystalline materials for applications that benefit humankind, spanning from medicine to energy and the environment,” says Rimer in a news release. “Success calls for a paradigm shift in the understanding of crystal nucleation mechanisms and structure selection that will be addressed in this center.”

The Welch Foundation, which was founded in 1954, has granted over $1.1 billion to scientists in Texas. This new grant program targets researchers focused on fundamental chemical solutions. Earlier this year, the organization announced nearly $28 million in grants to Texas institutions.

"Support from the Welch Foundation has led to important advances in the field of chemistry, not only within Texas, but also throughout the United States and the world as a whole,” says Randall Lee, Cullen Distinguished University Chair and professor of chemistry, in the release. “These advances extend beyond scientific discoveries and into the realm of education, where support from the Welch Foundation has played a significant role in building the technological workforce needed to solve ongoing and emerging problems in energy and health care.”

Rimer and Lee are joined by the following researchers on the newly announced center's team:

  • Peter Vekilov, Moores Professor, chemical and biomolecular engineering
  • Alamgir Karim, Dow Chair and Welch Foundation Professor, chemical and biomolecular engineering;
  • Jeremy Palmer, Ernest J. and Barbara M. Henley Associate Professor, chemical and biomolecular engineering
  • Gül Zerze, chemical and biomolecular engineering
  • Francisco Robles Hernandez, professor of engineering technology.

The University of Houston also received another grant from the Welch Foundation. Megan Robertson, UH professor of chemical engineering, received $4 million$4 million for her work with developing chemical processes to transform plastic waste into useful materials.

“For the University of Houston to be recognized with two highly-competitive Welch Foundation Catalyst Grants underscores the exceptional talent and dedication of our researchers and their commitment to making meaningful contributions to society through discovery,” Diane Chase, UH senior vice president for academic affairs and provost, says in the release.

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