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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2024's 5 most-read startup feature stories

year in review

Editor's note: As the year comes to a close, InnovationMap is looking back at the year's top stories in Houston innovation. This past year, InnovationMap featured profiles on dozens of these Houston startups — from health tech to startups fostering community. Here are five Houston startup features that stood out to readers this year — be sure to click through to read the full story.

Houston immuno-oncology company reaches next FDA milestone, heads to phase 2 trial

A Houston company with a promising immuno-oncology is one step closer to delivering its cancer-fighting drug to patients who need it. Photo via Getty Images

A Houston immuno-oncology company has recently made major headway with the FDA, including both a fast track and an orphan drug designation. It will soon start a phase 2 trial of its promising cancer fighting innovation.

Diakonos Oncology was born in 2016, the brainchild of Baylor researchers already hard at work in the realm of dendritic cell vaccines. Drs. Will Decker, Matt Halpert, and Vanaja Konduri partnered with Dan Faust, a Houston businessman and pharmacist, to bring their treatment to the public, says COO Jay Hartenbach.

The name Diakonos means “deacon or servant in Greek,” he explains. “A lot of companies end up focusing on treating a specific disease or cancer and what you end up having is a significant amount of potential but with a lot of tradeoffs and downsides. And so our goal is we need to eliminate the cancer but we can't harm or dramatically malign the patient in doing so.” Continue reading.

Houston founder taps into AI tech to create game-changing healthy eating platform

A Better Meal — a new app from a Houston founder — gives you all the tools you need to make healthier food choices. Photo via abettermeal.com

After many years of living to eat, a large swath of American society is now facilitating a seismic shift to the healthier alternative, eating to live.

But here’s the rub: eating healthy is confusing, time consuming and, unfortunately, oftentimes pricey.

So, anyone that can come in and cut through the healthy eating machine can carve out a necessary niche in the marketplace.

Enter Houstonian Mark Semmelbeck, founder and CEO of A Better Meal, a platform created to help busy families plan healthy meals easier and to make gradual improvements to their health and well-being.

“My vision is to use rapidly expanding AI technology together with the knowledge and wisdom of an active community to take the stress out of meal planning and improving nutrition,” says Semmelbeck, a seasoned oil and gas executive with over 30 years of experience in founding companies. “While developing the technology for the app, my daughter gave me two beautiful grandkids who both have significant food allergies. Combine that with the fact I now have five cardiac stents and the significance of eating well while paying attention to the details has only grown in importance.” Continue reading.

Hardtech startup moves into Houston area with new Conroe facility, eyes tests in space

FluxWorks, a hardtech startup, opened its new home-base in Conroe, Texas. Photo courtesy FluxWorks

FluxWorks, a hardtech startup, recently opened its new base of operations in Workhub Developments’ Conroe location.

Founded in College Station by CEO Bryton Praslicka, FluxWorks specializes in making contactless magnetic gears for use in extreme conditions. At 9,000 square feet, the new Conroe facility is a result of discussions with Governor Greg Abbott's office and the Greater Houston Partnership, who introduced the company’s leadership to the Conroe Economic Development Council, encouraging their move, Praslicka tells InnovationMap.

“The pieces of the puzzle were all there, and with the support of the local, state, and federal government, we were thrilled to move to Conroe,” Paslicka says. Continue reading.

Houston startup secures IBM partnership for AI-backed consumer tech

IBM and Boxes recently partnered to integrate the IBM watsonx Assistant into Boxes devices, providing a way for consumer packaged brands to find out more than ever about what its customers like and want. Photo courtesy of Boxes

With the help of a new conversational artificial intelligence platform, a Houston startup is ready to let brands get up close and personal with consumers while minimizing waste.

IBM and Boxes recently partnered to integrate the IBM watsonx Assistant into Boxes devices, providing a way for consumer packaged brands to find out more than ever about what its customers like and want.

The Boxes device, about the size of a 40-inch television screen, dispenses products to consumers in a modern and sustainable spin on the old-fashioned large vending machine.

CEO Fernando Machin Gojdycz learned that business from his entrepreneur father, Carlos Daniel Machin, while growing up in Uruguay.

“That’s where my passion comes from — him,” Gojdycz says of his father. In 2016, Gojdycz founded Boxes in Uruguay with some engineer friends. Continue reading.

Houston founder aims to help find your purpose, make strategic connections over a cup of coffee

Cup of Joey has expanded across Houston to help make valuable connections to Houston entrepreneurs. Photo courtesy of Cup of Joey

What is your purpose in life? One Houstonian is asking that question of his fellow entrepreneurs all across town.

Joey Sanchez founded Cup of Joey, a weekly meetup opportunity for innovators, business leaders, and the whole Houston community. The events are a place not only to share a cup of coffee but also their very own mission in life.

It all started in 2021 at the Houston Tech Rodeo, an initiative from Houston Exponential, where Sanchez worked as a director of corporate engagement. Texas had just opened social distancing in public events since the beginning of the COVID-19 pandemic, and Sanchez was finding ways to reconnect the Houston community.

‘We thought what better way than over a cup of coffee?” Since then, Sanchez has connected thousands of people based on purpose every Friday for the past three and a half years. Continue reading.

3 clean energy innovators make Forbes list of top young energy professionals

under 30

A handful of Houstonians have been named to the Forbes 30 Under 30 Energy and Green Tech list for 2025.

Kip Daujotas is an investment associate at Aramco Ventures, a $7.5 billion venture capital arm of the world's largest energy company. Houston is the Americas headquarters for Saudi Aramco. Since its inception in 2012, Aramco Ventures has invested in more than 100 tech startups. Daujotas joined the team over two years ago after studying for an MBA at Yale University. He led Aramco’s first direct air capture (DAC) investment — in Los Alamos, New Mexico-based Spiritus.

Also representing the corporate side of the industry, Wenting Gao immigrated from Beijing to obtain an economics degree from Harvard University, then got a job at consulting giant McKinsey, where she recently became the firm’s youngest partner. Gao works on bringing sustainability strategies to energy and materials companies as well as investors. Her areas of expertise include battery materials, waste, biofuels, and low-carbon products.

Last but not least, Houston entrepreneur Rawand Rasheed is co-founder and CEO of Houston-based Helix Earth. He co-founded the startup after earning a doctoral degree from Rice University and co-inventing Helix’s core technology while at NASA, first as a graduate research fellow and then as an engineer. The core technology, a space capsule air filtration system, has been applied to retrofitting HVAC systems for commercial buildings.

Each year, Forbes 30 Under 30 recognizes 600 honorees in 20 categories. The 2025 honorees were selected from more than 10,000 nominees by Forbes staff and a panel of independent judges based on factors such as funding, revenue, social impact, scale, inventiveness, and potential.

Specifically, the Energy & Green Tech category recognizes young entrepreneurs driving innovation that’s aimed at creating a cleaner, greener future.

“Gen Z is one of the fastest-growing groups of entrepreneurs and creators, who are reshaping the way the world conducts business, and our Under 30 class of 2025 proves that you can never begin your career journey too early,” says Alexandra York, editor of Forbes Under 30. “With the expansion across AI, technology, social media, and other industries, the honorees on this year’s list are pushing the boundaries and building their brands beyond traditional scopes.”

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This article originally ran on EnergyCapital.