The hiring process is growing increasingly automated, as employers in New Jersey and around the country turn to artificial intelligence (AI) that uses hiring algorithms. This could be a time-saving measure for employers, helping them sort through large numbers of job applications, but it can also potentially result in violation of antidiscrimination laws. While it might seem unlikely that employers would use these algorithms for deliberate discrimination against categories protected by laws like the New Jersey Law Against Discrimination, not all unlawful employment discrimination requires discriminatory intent. AI relies on the information it receives from human users. When an AI bases hiring recommendations on existing data or past hiring patterns, it could end up perpetuating inequities. One question that courts are only beginning to address that could have an impact on New Jersey employment discrimination cases is how to determine liability when a computer engages in discrimination on an employer’s behalf.
Disparate Impact Discrimination
A policy or practice with no discriminatory intent can still violate antidiscrimination laws if it has a disparate impact on members of a protected group when compared to others. The U.S. Supreme Court first recognized disparate impact discrimination in Griggs v. Duke Power Co., 401 U.S. 424 (1971). The employer, located in North Carolina, required applicants for certain jobs to have a high school diploma and to pass an IQ test. The policy had a substantially disparate impact on Black applicants. The court found that the employer’s policy was not “reasonably related” to the jobs in question, and that it therefore violated Title VII of the Civil Rights Act of 1964.
Discrimination in, Discrimination Out
AI algorithms are designed to simulate the functions of the human brain. They cannot “think” on their own — at least not yet. Instead, they process information according to algorithms, all provided by humans. Hiring AIs consider metrics like education and work experience. The most sophisticated hiring tools available right now can even analyze video recordings of job interviews to evaluate candidates.