Editor’s Letter: Is AI Guilty of Job Discrimination?

AI Yai Yai

The Equal Employment Opportunity Commission (EEOC) is investigating the use of artificial intelligence (AI) in hiring and whether this discriminates against job applicants.

AI programs are of some value in machine-learning applications. Many new plastics process machines are equipped with AI software that monitors manufacturing and “learns” to adjust process parameters to assure that machines are productive, produce high-quality parts and are cost-effective to operate. All of which, of course, is good for competitiveness.

The EEOC, however, questions whether AI, when applied beyond part production, can be relied upon to accurately screen something as nuanced as job candidates and select for employment consideration those who meet a company’s recruitment criteria.

The Commission held a public hearing on Jan. 31, in Washington, D.C., to examine the use of automated systems, including AI, in employment. The hearing, “Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier,” included testimony from computer scientists, civil rights advocates, legal experts, an industrial psychologist and employers. They discussed how discrimination may occur when companies use automated systems, as well as ways in which AI and automated systems in the workplace might support or hinder diversity, equity, inclusion and accessibility efforts.

“The goals of this hearing were to both educate a broader audience about the civil rights implications of the use of these technologies and to identify next steps that the Commission can take to prevent and eliminate unlawful bias in employers’ use of these automated technologies,” said EEOC chair Charlotte A. Burrows. “We will continue to educate employers, workers and other stakeholders on the potential for unlawful bias so that these systems do not become high-tech pathways to discrimination.”

With plastics and other industries dealing with a shortage of workers, AI is often used to speed the selection and hiring of qualified individuals. The problem is in the reliability of AI as a selection mechanism and if the EEOC could interpret its use as discriminatory. Should this happen, the next step could be laws that restrict AI, along with litigation by the plaintiffs’ bar to collect damages from allegations of discrimination via individual or class-action lawsuits.

Almost all big employers in the U.S. use AI and automation in hiring, according to National Public Radio in a Jan. 31 report. NPR quoted Burrows as saying at the hearing that “Some 83 percent of employers, including 99 percent of Fortune 500 companies, now use some … automated tool as part of their hiring process. The stakes are simply too high to leave this topic just to the experts.”

Interestingly, many experts are not sold on the intelligence of artificial intelligence—at least not now. While futurists—or soothsayers, whichever you prefer—predict that humanity is marching in lockstep to the Great Singularity, that time (as soon as 2030, some claim) when technological growth becomes uncontrollable and irreversible, and results in unforeseeable changes to civilization, much will need to be done to improve the IQ of AI by then.

In fact, in a broadcast by NPR on Feb. 2, reporter Geoff Brumfiel interviewed AI experts who said the technology is not now capable of developing accurate conclusions based on data it analyzes. “These systems make mistakes all the time,” said Gary Marcus, an AI scientist who, with Ernest Davis, co-wrote the book Rebooting AI. “[The systems] don’t really understand what they’re talking about.”

Some AI researchers, Marcus added, think that the software just needs more development, but he isn’t so sure. “There are some people that I think have a fantasy that we will solve the truth problem of these systems by just giving them more data. And there are people that realize [AI systems are] missing something fundamental: the ability to look at a database and fact-check against that database.”
A decision from the EEOC on this may come sooner than later. If the Commission finds a case for discrimination in using AI in hiring, one EEOC lawyer tells me, it will use a conciliation process and try and negotiate a settlement before attempting to litigate one.

It would thus do well for plastics companies to keep an eye on decisions from the EEOC and to volunteer their input in any future hearings.