Workday has been sued by a job applicant in the United States for discrimination. Court documents state that since 2018, the applicant was rejected for more than 80 positions at companies that use Workday as a recruitment screening tool. In this series, we delve into the wondrous world of AI, recruitment and regulation.
Regulating artificial intelligence
The rise of Artificial Intelligence in recruiting and hiring practices has led to a frenzy of new laws and regulations in the United States and Europe. In April 2021, the European Union proposed what was in essence a combination of the first-ever legal framework on AI and a coordinated plan that guarantees the safety and fundamental rights of people and businesses. “By setting the standards, we can pave the way to ethical technology worldwide and ensure that the EU remains competitive along the way”, said Margrethe Vestager, Executive Vice-President for A Europe fit for the Digital Age.
“By setting the standards, we can pave the way to ethical technology worldwide and ensure that the EU remains competitive along the way.”
Meanwhile, the US seemed to be one step ahead. In 2020, Illinois became the first-ever state to regulate the increasing usage of artificial intelligence in recruitment practices. The Illinois Artificial Intelligence Video Interview Act (AIVI) cracked down on the use of AI in video interviews to determine if the applicant exhibited the characteristics of ‘successful’ candidates and may provide hiring recommendations.
Patterns of discrimination?
Whenever laws are made — lawsuits tend to follow. Now, in the US, the first class-action has been launched against Workday. Derek Mobley, a man over the age of 40 with a Bachelor’s degree in Finance and an Associate Degree in Network Systems Administration, is aiming to challenge ‘systemic discrimination’. “By seeking class-wide relief against Workday for its administration and dissemination of discriminatory screening products as part of its employment policies and procedures which constitute a pattern and practice of discrimination on the basis of race, age, and disability with respect to selections.”
As part of the lawsuit, as made public in court documents, Mobley argues that he has applied for at least 80 open positions that use Workday as a screening tool, ‘and was denied employment each and every time’. Mobley’s lawsuit is based on three separate counts. It argues that he was discriminated against because of his race, which would be in violation of the Civil Rights Act of 1964. It argues Workday’s screening tools discriminate on basis of disability, which would be in violation of the ADA Amendments Act of 2008. And, finally, on the basis of age, which would be in volition of the Age Discrimination in Employment Act of 1967.
Tough to prove
Mobley isn’t the first — nor will be the last — to attempt such a lawsuit. But looking at the jurisprudence, he will have great difficulty to succeed. Starting with the ADA act, up until 2019, Psychiatric Services research identified 26 cases which used the act. Of those 26 cases, the lower courts ruled in favour of the employer 25 times. Age discrimination, too, will be tough to prove, other research shows.
In the English and Welsh employment tribunals, the success rate of such cases in 2021 was around 2%, according to Bloomberg Law.
In the US, roughly 13,000 complaints were filed in 2021 under the ADEA, but legal experts say the number of complaints represents just a sliver of the actual incidents, as they don’t include cases filed under state laws. Age-discrimination cases make up about 21% of claims filed each year the Equal Employment Opportunity Commission, the federal agency tasked with enforcing employment laws. While any US statistics are tough to get ahold of, in the English and Welsh employment tribunals, the success rate of such cases in 2021 was around 2%, according to Bloomberg Law.
‘AI is ultimately a mirror’
The usage of Artificial Intelligence in hiring practices is commonly becoming a global theme. In a video that has garnered over 5 million views on YouTube, talkshow host John Oliver addresses the entire sphere of AI. But a good part of the segment is directed at the way it is used for recruitment. “One of the biggest things we need to do is tackle that blackbox problem”, Oliver said. “While companies may be reluctant, we need to force them to do that.”
“Like any shiny new toy, AI is ultimately a mirror. And it will reflect back exactly who we are.”
Oliver points at the forthcoming European legislation, which would be a lot harder on Artificial Intelligence than any American laws have been thus far. “AI would be subject to strict regulation before they’re put on the market. That seems like it would be a good start. AI has tremendous potential, and could do great things. But if it’s anything like most technological advancements. Unless, we’re very careful it could hurt the underprivileged. Enrich the powerful and widen the gap between them. Like any shiny new toy, AI is ultimately a mirror. And it will reflect back exactly who we are.”
Want to know more about AI in Recruitment?
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This article is part of a series delving into AI, Recruitment & Regulation. Subscribe to the Recruitment Tech newsletter to stay updated about the latest developments and insights about all things AI and legislation.