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The New Jersey State Assembly Weighs a Bill that Would Protect Workers from Discrimination in the Hiring Process… by Artificial Intelligence Software

Last spring, the U.S. Equal Employment Opportunity Commission sounded an alarm that called into question the fairness of hiring processes aided by artificial intelligence, pointing out that AI-assisted hiring has the potential to enhance, rather than alleviate, certain forms of impermissible bias. That risk remains an ongoing problem… one that the State of New Jersey may soon address with a new law. If you have been the target of discrimination in the hiring process because of your disability, gender, race, age, or other protected characteristic, that’s a potential violation of the law, whether the source point was a human or a bot. Whatever the specifics, a knowledgeable New Jersey employment discrimination lawyer can help outline for you the options the legal system has available.

Right now, employers have few restrictions on the AI they use. That could soon change in this state. Certain lawmakers here in New Jersey recognized the potential for AI to increase, rather than decrease, the frequency of certain types of discrimination in hiring processes.

Three Democrat lawmakers are the primary sponsors of Assembly Bill 4909, which would impose certain rules on employers seeking to use AI in their hiring processes. According to one of its primary sponsors, the bill doesn’t seek to ban the use of AI in hiring, but rather intends to make “sure that we are checking and auditing and putting some boundaries in place to ensure equity,” reported.

If the bill passes in its current form, employers that desired to use forms of AI in their hiring would first have to clear some hurdles of their own. Any AI used in hiring New Jersey would have to pass a “bias audit” that tests the software for “patterns of discrimination.” The software would also be subject to regular scrutiny in the form of annual reviews to ensure continued compliance with state law.

Last month, Assembly Bill 4909 cleared its first major hurdle, as it was voted out by the Labor Committee, 8-1. It has subsequently moved to the Assembly’s Science, Innovation and Technology Committee.

Concerns related to AI in hiring and the potential for illegal discrimination are far from hypothetical. According to the report, nearly two-thirds (64%) of all HR professional said that they used forms of AI – which can include anything from intelligent screening of resumes or applications to digitized interviews to chatbots — as part of their hiring. Generally, the AI serves the role of filtering out purportedly unqualified applicants and shrinking the pool of candidates to allow the human hiring managers to more easily identify the top applicants.

How AI Can Engage in Gender, Disability, or Even Pregnancy Discrimination

It is sometimes said that a software algorithm is only as good as the programmer who wrote the code. That was something that Amazon reportedly discovered in 2018. At that time, it scrapped its AI hiring tool because it tended to punish applicants if they listed things with “women” in key areas. That meant adversely scoring applicants for anything from listing a major in “Women’s Studies” to activities like “Women’s Basketball” or “Society of Women Engineers” to listing a degree from certain women-only colleges, according to Reuters.

Arguably, the most glaring risk is disability discrimination. An AI algorithm might punish a visually impaired person for poor keyboard skills (such as inaccuracies or slow typing,) even in cases where the job in question didn’t involve typing. A chatbot might downgrade an applicant who answers in the negative when asked about lifting heavy items or standing for extended periods, even if the job did not involve those things (or could be accomplished with a disability accommodation.)

People with disabilities are the not only ones with possible reasons for concern. AI screening algorithms have the potential to downgrade or discard applicants who have gaps in their resumes. In addition to potentially discriminating against people with disabilities, this might also unfairly cull women who exited the workforce due to pregnancy and/or the need to care for a new baby (thereby raising the possibility of impermissible pregnancy discrimination.)

Technology is perpetually advancing and the world is constantly evolving. One thing that is unchanging is that, as long as there are employers and jobs, there will be employment discrimination. When the person who suffers harm as a result of improper discrimination — either on the job or in the hiring process – is you, the skilled New Jersey employment discrimination attorneys at Phillips & Associates are here to help. Our team is dedicated to helping workers hurt by discrimination or harassment in the Garden State to get justice. To find out more, contact us online or at (866) 530-4330 to set up a free and confidential consultation today.

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