The end of 2022 saw the announcement of major layoffs and workforce reductions in the United States, and more fluctuations in the labor market is expected in 2023. In an uncertain job market, employers continue to leverage technologies to streamline the recruitment, hiring and promotion processes – oftentimes these technologies are based on algorithmic models that quickly analyze vast data sets to rank candidates for hiring, or analyze job performance metrics to recommend promotions. Initial screening interviews may be conducted by AI-backed chatbots or by a fully automated video interview.
The use of Artificial Intelligence (“AI) and Machine Learning (“ML”) tools – broadly defined to include any model that processes datasets to detect patterns or make recommendations – in the employment context is not new. What is new, however, is the increasing awareness that AI, ML and automated tools may perpetuate bias based on race, gender or other protected class status. A recent Equal Employment Opportunity Commission (“EEOC”) enforcement action against iTutorGroup, for example, alleges that the company discriminated against older candidates in violation of the Age Discrimination in Employment Act (ADEA) by automatically rejecting candidates on its hiring platform whose inputted date of birth was over a certain year.
