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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Emerson Perin of the Texas Heart Institute, recently published the largest clinical trial of cell therapy for patients with chronic heart failure to-date included 580 patients at 52 sites throughout North America. Photo via texasheart.org

Emerson Perin’s end goal isn’t to treat heart failure. The medical director of The Texas Heart Institute says that he has his sights set firmly on curing the malady altogether. And, with the power of innovation and a strong team, the Houston-based cardiologist has a good chance of meeting his objective.

Perin first came to THI for fellowship training in 1988, following his residency in Miami and medical school in his birthplace of Brazil.

“This is a very special place,” the physician and researcher, whose titles also include director for THI’s Center for Clinical Research and vice president for medical affairs, tells InnovationMap. “It has a worldwide-reaching reputation. I’ve always liked research and this is a great place in terms of innovation and practicing high-level cardiology.”

For decades, Perin has followed in THI founder Denton Cooley’s footsteps with world-changing research. In 2001, the founding medical director of THI’s Stem Cell Center was the first person to inject stem cells into a failing human heart. It led to a trial of 17 patients that year.

“A couple of the patients did remarkably well — more than you could ever expect. These guys who couldn’t’ walk across the room pretty much were jogging on the beach. That gave me the initial insight that this works,” Perin recalls.

What exactly is heart failure? The term refers to the condition of a heart that can’t pump enough blood to sustainably power the body through oxygenation of the tissues from blood flow. It may sound like a death sentence, but with appropriate care, it can usually be managed with medicines and if worsening occurs, devices and, ultimately, heart transplantation.

And Perin is proving that there’s a lot of life ahead for heart failure patients. Earlier this year, he published another groundbreaking clinical trial, DREAM-HF. The largest clinical trial of cell therapy for patients with chronic heart failure to-date included 580 patients at 52 sites throughout North America.

With the goal of getting a new cell therapy approved for heart failure, the primary endpoint was to prove that the therapy could prevent recurrent hospitalizations.

“It was a total negative,” says Perin. That’s because the cells don’t have a decongestant effect such as the medicines currently used to treat heart failure.

But that doesn’t mean that the trial was a failure. Quite the opposite. That’s because Perin and his team proved something else: The trial was able to prove that there was significant improvement in patients with inflammation. After those patients were injected with mesenchymal precursor cells (MPC), they showed a 70-percent reduction in heart attacks and strokes. Cardiovascular deaths also decreased.

These are blockbuster numbers, and big news for patients dealing with heart failure. What it means is that the cells addressed a different aspect of heart failure that until now had been left untreated which was the inflammation — how heart failure starts and what keeps it going.

So what’s next? Going to the FDA.

“They said, ‘We can’t approve it with one trial, but we’ll approve it with two,’” says Perin.

This time, his primary endpoint will be tailored to suit the positive outcome he knows he’ll be able achieve. This next round will begin in 2024.

Once the FDA approves a new catheter system for injecting the heart with stem cells and genes, the team will proceed with new studies. Gene therapy will be another frontier for Perin — and patients with heart failure.

“I think the combination of cells and genes is even more powerful,” he says. “That will help save lives in a completely new way and do away with heart failure.”

Perin's work is just one piece of the puzzle, and Dr. Joseph Rogers, who was appointed president and CEO of THI in 2021, is leading the organization's initiative in several ways. THI, recently buoyed by a $32 million donation from a patient — the largest charitable donation in its history — is exploring several innovative therapeutics, devices, and treatments.

THI recently received a two-year, $1.14 million grant from The National Heart, Lung, and Blood Institute to develop a novel, first-in-class drug to treat the cardiovascular disease that arises from atherosclerosis. Another THI innovator, Camila Hochman-Mendez — along with her research team — is studying the effects of regenerative medicine on hearts.

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