AI may be the hiring tool of the future, but it could come with the old relics of discrimination.

With almost all big employers in the United States now using artificial intelligence and automation in their hiring processes, the agency that enforces federal anti-discrimination laws is considering some urgent questions:

How can you prevent discrimination in hiring when the discrimination is being perpetuated by a machine? What kind of guardrails might help?

Some 83% of employers, including 99% of Fortune 500 companies, now use some form of automated tool as part of their hiring process, said the Equal Employment Opportunity Commission's chair Charlotte Burrows at a hearing on Tuesday titled "Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier," part of a larger agency initiative examining how technology is used to recruit and hire people.

Everyone needs speak up on the debate over these technologies, she said.

"The stakes are simply too high to leave this topic just to the experts," Burrows said.

Resume scanners, chatbots and video interviews may introduce bias

Last year, the EEOC issued some guidance around the use of cutting-edge hiring tools, noting many of their shortcomings.

Resume scanners that prioritize keywords, "virtual assistants" or "chatbots" that sort candidates based on a set of pre-defined requirements, and programs that evaluate a candidate's facial expressions and speech patterns in video interviews can perpetuate bias or create discrimination, the agency found.

Take, for example, a video interview that analyzes an applicant's speech patterns in order to determine their ability to solve problems. A person with a speech impediment might score low and automatically be screened out.

Or, a chatbot programmed to reject job applicants with gaps in their resume. The bot may automatically turn down a qualified candidate who had to stop working because of treatment for a disability or because they took time off for the birth of a child.

Older workers may be disadvantaged by AI-based tools in multiple ways, AARP senior advisor Heather Tinsley-Fix said in her testimony during the hearing.

Companies that use algorithms to scrape data from social media and professional digital profiles in searching for "ideal candidates" may overlook those who have smaller digital footprints.

Also, there's machine learning, which could create a feedback loop that then hurts future applicants, she said.

"If an older candidate makes it past the resume screening process but gets confused by or interacts poorly with the chatbot, that data could teach the algorithm that candidates with similar profiles should be ranked lower," she said.

Knowing you've been discriminated against may be hard

The problem will be for the EEOC to root out discrimination - or stop it from taking place - when it may be buried deep inside an algorithm. Those who have been denied employment may not connect the dots to discrimination based on their age, race or disability status.

In a lawsuit filed by the EEOC, a woman who applied for a job with a tutoring company only realized the company had set an age cutoff after she re-applied for the same job, and supplied a different birth date.

The EEOC is considering the most appropriate ways to handle the problem.

Tuesday's panelists, a group that included computer scientists, civil rights advocates, and employment attorneys, agreed that audits are necessary to ensure that the software used by companies avoids intentional or unintentional biases. But who would conduct those audits — the government, the companies themselves, or a third party — is a thornier question.

Each option presents risks, Burrows pointed out. A third-party may be coopted into treating their clients leniently, while a government-led audit could potentially stifle innovation.

Setting standards for vendors and requiring companies to disclose what hiring tools they're using were also discussed. What those would look like in practice remains to be seen.

In previous remarks, Burrows has noted the great potential that AI and algorithmic decision-making tools have to to improve the lives of Americans, when used properly.

"We must work to ensure that these new technologies do not become a high-tech pathway to discrimination," she said.

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