How It Could Lead To More Employment Discrimination


As our computer software and hardware constantly improve, employers find new ways to take advantage of these advancements. Instead of being relegated to increasing productivity, new technology, like artificial intelligence, is taking on additional roles in the workplace. Applications include monitoring employees and assisting in the hiring process.

But using new technology for decisions traditionally made by humans could have a few growing pains, including inadvertent discrimination. Luckily, workplace civil rights enforcement agencies like the U.S. Equal Employment Opportunity Commission (EEOC) and the Civil Rights Division at the U.S. Department of Justice (DOJ) are anticipating this potential problem and have taken steps to tackle it.

How Employers Are Using New Technology in the Workplace

There are two major areas in which employers are using technology in ways that could lead to illegal discrimination. First, it’s with monitoring employees’ productivity levels and measuring their performance. Second, it’s when making hiring decisions.

Using software, artificial intelligence and algorithms to increase the efficiency of the hiring process might be the single biggest example of how companies are trying to make the most of new technology. But in this quest to save time, money and effort, certain job applicants could find themselves at an unfair and illegal disadvantage.

How Advanced Technology Could Lead to Inadvertent Workplace Discrimination

In regards to employee monitoring (and ignoring the potential legal issues involved), there are situations where the goal of identifying who the most productive workers are could result in violations of the Americans with Disabilities Act of 1990 (ADA).

For instance, an employer might have software that monitors an employee’s keystrokes or completed computer tasks over a given time period. But what if an employee has an ADA-recognized disability that makes typing or using a traditional mouse cumbersome?

To deal with this challenge, they might have access to a reasonable accommodation, like voice recognition software or some other type of input device. Yet if the monitoring software doesn’t take these accommodations into account, the employee with a disability could be unfairly graded by the monitoring software. This flawed assessment might ignore the fact that the employee is perfectly capable of completing their job tasks with a reasonable accommodation. An employer aware of this scenario could avoid this situation by using a different way of testing or grading the employee’s productivity levels. But the trick is being aware that this type of scenario could arise.

As for technology leading to discrimination during the hiring process, there are many possible pitfalls for an unwary employer. Some examples include:

  1. Software and algorithms that scan resumes from applicants for specific keywords.
  2. Facial and voice-recognition technology that grades job applicants based on how they talk and their facial expressions.
  3. Asking potential employees to take a self-assessment test to determine their personality and if they’ll be a good fit for a particular position.
  4. Using chatbots or virtual assistants to ask job applicants basic questions about their qualifications.
  5. Requiring prospective hires to take a pre-employment test on a computer.

These seem innocuous, and for the most part, they are. So how could they lead to discrimination? In example #1, whoever develops the algorithms and software might unknowingly program the technology to give special preferences to gender-biased words. This might give resumes from a particular sex or gender an advantage in the selection process.

In example #2, the software and algorithms could place a special emphasis on candidates that speak a certain way or use certain words. But those with accents, a unique manner of speaking or disabilities that affect speech could be penalized by the technology. This could lead to unlawful discrimination based on someone’s race, color, national origin or disability.

For example #3, a candidate with severe depression could be disqualified from a position due to their “personality” even though their answers are a consequence of a mental impairment that’s recognized by the ADA.

For example #4, imagine a chatbot that asks job applicants yes or no questions about their job history. And one of the questions is if they were ever fired from a job “for cause.” An applicant wants to answer truthfully and errs on the side of caution by answering “yes.” Yet this answer automatically results in their disqualification from the position. But the chatbot didn’t allow the job applicant to explain that the reason for their termination was later found to be illegal because it was due to the job applicant’s age.

In the fifth example, the test itself may not be discriminatory. But if it’s given in a way that places certain applicants at a disadvantage because of a protected trait, it could be illegal.

A hypothetical situation might be an aptitude test that has to be taken on a computer in the employer’s office and measures the job candidate’s typing skills. But the job candidate is visually impaired. And while they can type on a regular keyboard, their typing skills are nowhere near as good as when using a braille keyboard.

What Can Employers Do to Avoid Technology Discrimination?

The biggest thing employers can do is become educated about the potential problems new technology can have. And that despite the best intentions, discrimination can still take place.

In the majority of situations, employers making use of technology aren’t trying to discriminate. But they might be ignorant of how the use of their technology results in the dismissal of promising applicants and successful employees because of protected characteristics.

To help increase awareness among employers, various government agencies have released legal and technical guidance. These are intended to advise employers on what they need to look out for when implementing new software, algorithms and artificial technology in the workplace.

Two recent releases have come from the EEOC and DOJ with The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees and Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring, respectively. These focus on disability discrimination, but are likely just the beginning.

The U.S. Department of Labor (DOL) will probably release its own legal guidance for employers. Then there’s probably going to be guidance handed down in regards to how an employer’s use of technology could lead to discrimination in violation of other federal laws, like Title VII of the Civil Rights Act of 1964 (Title VII).

Bottom Line

New technology can help provide new ways for employers to get work done. But if they’re not careful, it could result in inadvertent discrimination of employees and job applicants. Federal agencies responsible for enforcing workplace civil rights laws are already taking steps to help employers avoid these mistakes.