New AI Report Issued with Input from Leaders at Berkshire and ResEcon

A new report on the use of artificial intelligence in employment decision-making was issued today by an inter-disciplinary Artificial Intelligence Technical Advisory Committee (TAC) convened by the Institute for Workplace Equality.  The TAC was chaired by Resolution Economics partner Victoria A. Lipnic, Esq., former Commissioner and former Acting Chair of the EEOC, and included 40 subject matter experts, including Berkshire’s Lynn Clements Esq. and ResEcon’s Human Capital Strategy Artificial Intelligence Audit team, including Lipnic, Gurkan Ay, Ph.D., Margo Pave, Esq., and Ye Zhang, Ph.D. 

What’s in the Report? 

This report examines the key Equal Employment Opportunity (“EEO”) and Diversity, Equity, Inclusion & Accessibility (DEI&A) issues that employers need to understand and address when using AI-enabled employment tools.  

The report summary highlights 17 key findings, including the following: 

• How AI is currently being used:  
  “The most prevalent use of AI in the employment context today is in sourcing candidates and making hiring decisions. But employers are increasingly using or seeking to use AI enabled tools across the full employment lifecycle.” 
   
• How AI is currently being regulated:  
  “While there currently are no federal laws imposing specific transparency, notice, consent, or privacy requirements for use of AI in the employment process, several states and localities have implemented such laws, which may require employers to adjust their approach to the use of AI tools.” 
   
• Consent requirements for AI-driven data collection:  
  " The issue of consent for the collection and use of data for employee selection processes is more complex in the context of AI-enabled processes than traditional selection processes because it is often difficult for applicants in an AI-enabled process to discern what data is being collected and the criteria upon which they are being evaluated. While it may be possible to imply consent by an applicant who has received notice and then proceeded to engage in an AI-enabled process, it is a better practice for an employer not only to provide clear notice to applicants that AI is being used and how it is being used, but also to obtain consent from the applicant” 
   
• Concerns about AI and its impact on individuals with disabilities:  
  “Use of AI-enabled employment selection tools may have amplified impact on people with disabilities. Employers should therefore familiarize themselves with the recent Technical Guidance Documents addressing the interaction of Artificial Intelligence and the Americans with Disabilities Act issued by the U.S. Equal Employment Opportunity Commission and Department of Justice” 
   
• No one-size-fits-all solution to AI:  
  “There is no one-size-fits-all statistical model that necessarily, unambiguously, and in every case “proves” adverse impact or discrimination. Moreover, understanding the questions that different statistical tests of adverse impact seek to answer, and the assumptions underlying each of them, is increasingly important in a world where AI tools may be deployed at both modest and massive scale.” 

What does this mean for employers?  

As the use of artificial intelligence in HR continues to expand, it’s important to understand the implications of AI, current discussions around governance, and what this could mean for your organization.  

Berkshire was thrilled to have Lynn Clements on the ground floor of these conversations, working closely with leaders at ResEcon and other inter-disciplinary experts to build out this comprehensive and timely report on AI in HR.  Berkshire and ResEcon are uniquely positioned to help our clients understand where the industry is headed, what risks are associated with AI-driven processes, and how companies can navigate this rapidly-evolving technology in the HR space while mitigating risk. 

For more information on how we can help you with AI, feel free to reach out to: lynn.clements@berkshireassociates.com. 

You can read the full report here.