How AI Is Used in the Hiring Process
Artificial intelligence, or AI, has permeated nearly every aspect of the hiring process, with most major companies incorporating some form of automation. AI tools are now widely used for the following tasks:
- Resume screening: AI programs can rapidly analyze large numbers of resumes to highlight those that meet the job listing’s criteria—and discard others.
- Candidate ranking: AI can compare candidates across highlighted resumes to determine which have qualifications that stand out.
- Video interview analysis: Some employers use AI software to analyze candidates’ facial expressions, word choice, tone of voice, and other traits based on video interviews.
- Automated decision-making: Across its various functions, AI can now determine which applications actually reach a human hiring manager—effectively eliminating candidates on its own.
The Risks of AI Bias in Hiring Decisions
AI systems are only as fair as the data and algorithms behind them. Instead of eliminating human bias, AI can reflect or amplify the biases present in its programming and the information it is given.
An AI system trained on biased historical data, such as sets that feature candidates who are mostly white and male, may attempt to recreate that bias by disproportionately favoring certain applicants over others. While these issues may be unintentional, the AI tools that propagate them are often implemented with little oversight or transparency.
In a 2024 study, researchers at the University of Washington found that three leading large language models, or LLMs, exhibited significant bias in resume analysis. After assigning 120 first names to more than 550 real resumes, the study found that the models preferred the resumes with “white-associated names” in 85% of cases and strongly favored male names over female ones. In particular, the study found an entrenched bias against Black male candidates, as names associated with Black men were never favored over those associated with white men.
Can AI Discriminate Against Job Applicants?
Yes, AI can discriminate against job applicants, and companies may be liable if their AI tools discriminate against members of a protected class. AI relies on algorithms, training models, and data sets to make hiring decisions, and flaws in any of these underlying components can lead AI software to favor or overlook candidates based on certain traits.
Under federal laws like Title VII of the Civil Rights Act of 1964, it is illegal to make hiring decisions based on certain protected characteristics, such as the following:
- Sex
- Race
- National Origin
- Ethnicity
- Religion
- Age, if the candidate is 40 or older
- Disability status
- Pregnancy status
The federal government has already settled lawsuits against three companies for age discrimination over the use of AI programs that automatically screened out older applicants. Meanwhile, workers are currently pursuing a federal class action lawsuit against the hiring platform Workday, claiming its algorithms illegally discriminate against job candidates based on race, age, and disability status.
The Legal and Workplace Implications of AI in Hiring
Federal regulators are taking notice. The Equal Employment Opportunity Commission, or EEOC, and the Department of Justice have issued guidance warning employers that the use of AI must still comply with anti-discrimination laws by doing the following:
- Ensuring that AI tools do not have a disparate impact on people based on race, sex, age, or disability.
- Making reasonable accommodations for applicants and employees with disabilities, even in an automated process.
- Informing applicants when AI tools are used and offering alternative options where appropriate.
Some states are also enacting their own laws. For example, New York City Local Law 144 requires employers to conduct bias audits and provide notice when AI is used in hiring decisions.
What Job Seekers and Employees Can Do
If you believe an AI-based decision negatively affected you—whether in hiring, promotion, or evaluation—you have the right to take the following steps:
- Request an explanation of the process used.
- Ask for accommodations if you have a disability.
- File a complaint with the EEOC or your local human rights commission.
Before taking any steps, consult with an employment attorney who understands the intersection of technology and labor rights. Legal professionals can help determine whether your rights were violated and what remedies are available.
Concerned About AI Bias in Hiring? Know Your Rights
If you believe you may have experienced AI bias in hiring, the trusted NYC workplace discrimination lawyers at Joseph & Norinsberg are ready to help. Our team has more than 75 years of collective experience and an extensive knowledge of employment law, helping us relentlessly pursue justice for workers like you.
Don’t suffer in silence for another day. Contact us online or call 212-227-5700 today for a free consultation.
