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

 
 

Four climatetech-focused individuals have been named to Greentown Lab's board. Photo via greentownlabs.com

Greentown Labs, a Massachusetts-based climatetech startup incubator with its secondary location in Houston, has appointed four new board members.

Of the new appointees, two community board members have been named in order to act as liaisons between startups and Greentown Labs. Greentown Houston's appointed representation is Nisha Desai, founder and CEO of Intention, and community member. The other new board members are Gilda A. Barabino, president of Olin College of Engineering and professor of biomedical and chemical engineering; Nidhi Thakar, senior director of resource and regulatory strategy and external engagement for Portland General Electric; and Leah Ellis, co-founder and CEO of Sublime Systems, who is the Sommerville location's community board member).

"It is important for a startup incubator to have leadership and insight from stakeholders including the public and private sector, academic and university communities," says Greentown Labs CEO Dr. Emily Reichert in a news release. "These leaders bring a wealth of knowledge relevant to not only climatetech but to our continued growth as an organization. Their voices will be important to have at the table as Greentown charts its course for the next decade of climate action."

Desai's current startup, Intention, is climate impact platform for retail investors, and she has previously worked at six energy-related startups including Ridge Energy Storage, Tessera Solar, and ActualSun, where she was co-founder and CEO. She's also worked in a leadership role at NRG Energy and spent several years as a management consultant with the energy practice of Booz Allen Hamilton — now Strategy&, a PWC company.

"I'm honored to join the board of Greentown Labs as a representative of the startup community," she says in the release. "This is a pivotal time for climate and energy transition. I look forward to working with the rest of the board to expand the collective impact of the Greentown Labs ecosystem."

The four new appointees join seven existing board members:

  • Alicia Barton, CEO of FirstLight Power (Board Chair)
  • Katherine Hamilton, Chair of 38 North Solutions
  • Dawn James, Director of US Sustainability Strategy and Environmental Science at Microsoft
  • Matthew Nordan, Co-Founder and Managing Director of Prime Impact Fund and General Partner at Azolla Ventures
  • Kathleen Theoharides, Secretary of Energy and Environmental Affairs, Commonwealth of Massachusetts
  • Mitch Tyson, Principal at Tyson Associates and Co-Founder of the Northeast Clean Energy Council
  • Dr. Emily Reichert, CEO of Greentown Labs

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