AI in Hiring & Recruiting
Artificial Intelligence and Machine Learning in Hiring and Recruiting
Artificial intelligence, or AI for short, is being discussed in nearly every business environment. The use of AI in various employment processes, especially diversity-focused recruiting and hiring, is advancing rapidly with new products and services entering the market at an explosive pace. These new technologies promise dramatic efficiencies and added value, while pledging a healthy return on investment.
of Fortune 500 companies rely on the aid of talent-sifting software
of HR leaders in the U.S. use predictive algorithms to support hiring
of business leaders are using AI to make DEIB-related workforce decisions
But a challenge for rapid innovation in any industry is the ability for regulatory requirements to keep pace. In the recruiting and hiring process, where AI provides an aid to human decision making and a welcome relief to managing a deluge of data, how can you combine important technological innovation with a proactive approach to employment law regulations and compliance requirements?
The logical solution is a system of industry self-regulation.
Epstein Becker & Green, in collaboration with leading industry self-regulatory program creator and administrator, BBB National Programs and its Center for Industry Self-Regulation, has launched an initiative to develop a new self-regulatory regime for AI in recruiting and hiring.
Regulatory shortcomings remain fertile ground for lawsuits and the Biden Administration civil rights law enforcement agencies are focused on AI.
However, as of August 2022, there are still few, if any, current regulatory restrictions on AI in the job hiring/recruiting space at the federal or state levels beyond new guidance analyzing existing employment law. As a result, products sometimes come to market untested, un-validated, and generally unwitting of employment law requirements for a company’s particular use case. And as with AI in almost any context, there remains a lingering question: will the validation still be valid after its next evolution? This is fertile ground for lawsuits alleging either disparate impact or treatment discrimination lawsuits both against vendors and employers who use these products.
No uniform principles currently exist in the U.S. or abroad for the use of AI in hiring applications. The U.S. Uniform Guidelines on Employee Selection Procedures, published in 1978, do not provide guidance necessary to navigate the current advanced state of hiring and recruitment technologies. The U.S. Government is starting to discuss regulatory initiatives broadly, and several leaders are on the speaking circuit on the issue, but it is unclear how quickly they will move.
The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice have begun issuing guidance implementing existing law relating to disability with more guidance expected in the next period.
Several other U.S. government agencies such as the FTC, OFCCP DOL, NLRB, and NIST are looking into AI in the employment context as well.
Several states and the District of Columbia are considering statutes and regulations governing the use of AI based on fairness principles and New York City, Maryland, and Illinois have enacted legislation.
- The European Commission is already further ahead of the United States in this area.
In collaboration with Epstein Becker & Green, the Center for Industry Self-Regulation has been convening business leaders at very large organizations to:
Explore baseline AI principles and best practices in recruiting and hiring.
Explore how to incorporate mechanisms of accountability, transparency, and accessibility.
Explore ways to identify, understand, measure, manage, and reduce bias found using AI.
Provide thought leadership to decisionmakers in the U.S. Government.
From these convenings we expect that the incubator group of leading companies will create an established set of robust, achievable, fair standards for the use of AI in recruitment and hiring that we expect will:
Provide guidance to employers and vendors seeking to properly leverage AI technology.
Help protect applicants and employees from biased decision-making.
Send marketplace signals to showcase best in class examples of responsible implementation and utilization of AI technology.
Demonstrate to regulators that new technologies are being developed and deployed responsibly.
Incubator Next Steps
- Finalize AI and Hiring and Recruiting Principles.
Consider AI vendor certification rules and a potential BBB National Programs seal.
Consider potential dispute resolution mechanism between AI vendors and companies.
Engage in thought leadership with senior U.S. Government officials.
For more information