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A New Law Governing the Use of A.I. in Hiring May Trigger Lawsuits


December 10, 2021

There may be more discrimination-related lawsuits coming in the near future thanks to a recently passed New York City bill governing the use of artificial intelligence in hiring.

One of the major implications of the bill, which New York’s city council passed in November and has now “lapsed” into law, is that companies will be required to disclose to job candidates whether they used A.I. in the recruiting process. This means that job recruits will now be able to learn whether companies they applied to used A.I.-powered hiring software that study people’s facial movements or analyze voices during job interviews, among other tasks.

This is a big deal because it could provide people some transparency when it comes to learning why they weren’t hired, explains Christine Webber, a civil rights attorney for plaintiffs’ firm Cohen Milstein. She believes that there haven’t been many A.I.-related employments lawsuits filed against companies because people are typically unaware that the technology may have been used on them.

“People don’t know what’s going on,” Webber said. “They don’t come and complain, ‘Hey, a computer denied me a new job.’”

For people of color, knowing whether A.I. was used to determine if they were a good fit for the job could be revelatory. After all, facial recognition software is widely known to not work as well on women and people of color as white men.

Webber brought up the scenario of a company using A.I.-powered facial recognition software that looks for facial cues and “micro expressions” during job interviews that could lead hiring managers to believe a person is deep in thought and therefore may make a better candidate than others. An example may be a person furrowing their brow, creating a little crease in their forehead.

Putting aside whether or not it’s even possible to deduce a person’s fit for the job by using A.I. to scan their face (there are many critics of this kind of use of the technology), Webber noted the potential problem that such a task would pose for people of color.

“It’s really important to be able to see the crease in everybody’s forehead,” she said.

In the chance that a company does use such technology during the hiring process, people of color will finally get more details about why they may have been overlooked for a role, at least those who live in New York City.

The A.I.-related hiring law isn’t expected to come into effect until 2023, which gives companies some time to evaluate the technology they currently use. But other states could pass similar laws, Webber said, also noting that the Equal Employment Opportunity Commission is also taking a tougher look at this kind of hiring software.

Either way, Black and brown people in New York City have something to look forward to: more information about how A.I. is used on their communities.

“New York is a large city, it’s a diverse city, so there’s a chance that somebody is going to be turned down for a job and thinks it’s discrimination and now they know there’s A.I.,” Webber said.

“I feel like it gives us a chance whereas before, there just wasn’t opportunity,” Webber said regarding people bringing up A.I.-related hiring lawsuits.

Read A New Law Governing the Use of A.I. in Hiring May Trigger Lawsuits.