At first glance, the idea of Artificial Intelligence (AI) making hiring decisions seems like it would be a good thing: not only does it speed the process, but one would think it would eliminate any preconceived notions or biases that a hiring manager might carry into a resume review. But that assumption is wrong, and experts caution that the opposite may in fact be true. That’s led New Jersey lawmakers to craft a bill to ensure that any hiring software used by employers in the Garden State has been subjected to a “bias audit.”

Concerns about AI systems are not unique to New Jersey. The New York City Council passed one of the country’s first laws regulating the use of AI in hiring, and the U.S. Department of Justice issued a notice to employers last May, warning that the use of Artificial Intelligence tools for employment decisions had the potential to violate the Americans with Disability Act. actually discontinued its use of an AI recruiting tool after it showed bias against women.

The federal government’s concerns were expressed in a technical assistance document released by both the Department of Justice and the Equal Employment Opportunity Commission that pointed out three major areas of concern:

  • Having a process in place to provide reasonable accommodations when using algorithmic decision-making tools;
  • Having proper safeguards to prevent workers with disabilities from being screened out from consideration in a job or promotion they can do with or without a reasonable accommodation; and
  • The use of AI or algorithms resulting in applicants or employees having to provide information about disabilities or medical conditions that could result in prohibited disability-related inquiries or medical exams.

Amazon’s experience made the phenomenon that the government feared clear. The company’s automation of their resume screening process used artificial intelligence programmed from information gathered over ten years of recruitment that had largely been conducted by men in the tech industry. Because decisions were patterned on this history, those men’s biases were programmed into the software, and resulted in resumes containing the word “women’s” being downgraded.

With that in mind and aware of the growing trend towards employers using or planning to adopt AI processes for hiring and recruitment, New Jersey lawmakers want to ensure that the state’s workers are not subject to racial, gender, cultural, or any other biases that have unwittingly been programmed into the software.

Bill A4909 has already been approved by the Assembly Labor Committee, and the state Senate is considering a similar law. Neither would ban the use of AI hiring software. Rather, it mandates that employers only use software that has undergone a bias audit that specifically looks for patterns of discrimination or bias. These audits would be conducted annually to ensure that they’re in compliance with New Jersey law. The law would also require that job candidates be told if artificial intelligence software was used as part of their hiring process.

According to state Assemblywoman Sadaf Jaffer, “This isn’t banning the use of this software. It’s just making sure that we are checking and auditing and putting some boundaries in place to ensure equity processes.” It is anticipated that there will be several amendments made to the bill before it can get the support of the business community, but consideration of the bill reflects the state’s continued commitment to barring discrimination against protected categories of people in the workplace.

If you believe that you’ve been unfairly treated due to bias in the hiring process or have in some other way suffered an adverse workplace event due to discrimination, our law firm can help. Contact us today to discuss your situation.