Labor & Employment Law Daily New technology, like AI, algorithms, apps, social media: Do they raise risks of discrimination or protect against them?
Monday, February 10, 2020

New technology, like AI, algorithms, apps, social media: Do they raise risks of discrimination or protect against them?

By Pamela Wolf, J.D.

A corollary question is whether our current workplace protection laws are adequate given technology-driven changes, especially in the context of recruiting and hiring.

At a House Labor and Education Subcommittee on Civil Rights and Human Services hearing on workers’ civil rights in the digital age, both the pros and cons of workplace technology were on display, with sharp divides as to whether further regulation is necessary to protect against unlawful biases that may interfere with the hiring and recruitment processes. A fundamental question at the hearing was whether current antidiscrimination and other workplace laws are adequate—in light of the emerging use of technology and the behind-the-scenes decision-making that goes into developing and deploying new recruiting and selection tools.

AI a welcome development. Republican Subcommittee Leader James Comer (R-KY), in his opening statement, underscored the costs and efficiencies that come with artificial intelligence (AI), compared to the potential to eliminate human biases: “New technologies continue to increase efficiency, reduce costs for employers in recruiting and hiring, and lead to quicker job placements and enhanced job opportunities.” Comer pointed to a statement made by the HR Policy Association, which noted that a recent survey showed that 71 percent of staffing firms believe artificial intelligence will eliminate human bias from the recruitment process. “So, not only can employers utilize new technologies to eliminate employment bias, but they can also be used to decrease the time and cost of doing business,” Comer declared.

The sharing economy.” “Technology has also driven the sharing economy, which has created substantial opportunities for workers and job creators who are seeking flexible workforce arrangements so they can better compete in our ever-changing economy,” Comer said. “Simply put, online platforms and other emerging technologies have given American workers more control, flexibility, and opportunity in the workplace than they have previously had.”

Discrimination laws already do the job. Comer did acknowledge that regardless of technological advancements, all workers should have the opportunity to achieve success in a workplace free from discrimination. “That is why there are important protections built into federal law to prevent workplace discrimination,” he said, also noting that these “protections are broadly written and continue to apply to new and emerging technologies.”

According to Comer, workers in the sharing economy are also protected under these laws. He cited the FLSA, which he said “has strong remedies in place for employers who incorrectly classify workers and violate minimum wage and overtime requirements. We shouldn’t penalize Americans who work for themselves or the companies that do business with them. Instead, we should applaud these Americans for their entrepreneurial spirit.”

“Our nation’s laws were written so that they can be, and are, applied to employers’ use of technologies in ways that protect workers,” according to Comer.

Well, maybe not. Attorney Peter Romer-Friedman of the law firm Gupta Wessler PLLC painted a different picture when it comes to the impact of technology on workplace discrimination. “It may be hard to believe, but in the past few years it has been possible for employers to send job advertisements—and ads for other economic opportunities—via social media platforms like Facebook that exclude workers from receiving those ads based on their race, age, gender, religion, national origin, disability, and even political affiliation,” he pointed out. “These types of exclusionary advertisements mean that people may not learn about jobs or other economic opportunities because of who they are or what they believe.”

To illustrate, Romer-Friedman said that until recently, a publicly traded company could decide not to send job ads on Facebook to people interested in Christianity, the Second Amendment, or the Republican National Committee, or on the other hand, could exclude people interested in the American Civil Liberties Union, the AFL-CIO, or Planned Parenthood from receiving their job ads.

“And, incredibly, not so long ago, employers actually had the option of targeting their ads on Facebook to people who were interested in things like Hitler, rape, white pride, fascism, and the Confederacy, or to people who had identified their ‘field of study’ as ‘Jew Hater’ or ‘how to burn Jews.’”

Current laws adequate. Attorney Esther G. Lander at Akin Gump Strauss Hauer & Feld LLP fell into the camp that sees current employment laws as adequate to meet any additional risks of discrimination that may be traced to technology. She said that to date, there has been little litigation concerning any of these technology-based selection tools, “nor are there any published studies that show AI tools are more likely to result in discriminatory selections than more traditional employment tests.” She did caution, however that when employers implement technology to make selection decisions, “it is important to understand how to do so correctly and avoid the risk of unlawful discrimination.”

According to Lander, “technological advances are benefiting workers, employers, and the economy,” and “as the labor force and businesses adapt to these changes, employment laws currently in place are adequate to ensure that workers’ rights are protected.”

Technology comes with added risks. Attorney Jenny R. Yang, Senior Fellow, Urban Institute, and former EEOC Chair, saw it differently, and she had a few things to say about the added risks presented by technology. “Technology is transforming the lives of America’s workers, and this transformation has profound implications for civil rights,” she said. “With the rise in algorithmic management, broadened monitoring and surveillance, and redefined employment relationships, technology is heightening the risk that employment discrimination may be masked through ineffective accountability structures and increasing information asymmetry.”

Unreviewable decisions. Yang explained that many new tech-driven systems use AI in algorithmic decision-making to make data-driven decisions about hiring or evaluating workers, yet these employment screens and evaluation systems raise what she called “critical” legal questions. “Systems are often opaque and make decisions on potentially inaccurate or biased data, and these decisions are often unreviewable,” she observed. “Because technology provides a sense of objectivity and scientific analysis, discriminatory decisions can become magnified and rapidly scaled.”

When it comes to new technology, there is often a desire to move fast, test new ideas, and disrupt existing practices, Yang noted. “However, in employment, technological systems are making highly consequential decisions that affect people’s economic opportunities,” she said. “These new technologies raise risks that must be adequately studied before systems are deployed. Just as we expect that driverless vehicles and diagnostic health algorithms will be rigorously studied, we should similarly expect that technology used to classify people will be adequately understood with clear accountability mechanisms before it is used.”

New regulatory framework needed. Looking at the big picture, Yang said, “To ensure that equal opportunity remains the foundation of our democracy, we must develop a new regulatory framework that creates safeguards and meaningful accountability. At the same time, our laws can be nimble to adapt to advances in technology and scientific understanding.” Yang also urged further study on how to reduce bias in the design and deployment of algorithms, and the broad sharing of knowledge across technologists, workers, government, and the public.

“As a society, we must recognize that the focus cannot remain solely on optimizing processes for employers—systems must also consider the impact on workers’ dignity, civil rights, and the preservation of our democracy,” according to Yang.

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