We began July with New York City starting to enforce its law that requires companies hiring with artificial intelligence to notify candidates, provide candidates with particular information about data collected and analyzed, and independently audit the technology. It’s all in the name of removing bias from the hiring process, which the U.S. Equal Employment Opportunity Commission has warned employers about, too.
Now, two Senators are co-sponsoring legislation they claim will “protect and empower workers by preventing employers from relying exclusively on artificial intelligence or bots to make employment decisions.”
Last week, U.S. Senators Bob Casey (D-PA) and Brian Schatz (D-HI) announced the No Robot Bosses Act of 2023. The proposed legislation is not yet available. However, there is a fact sheet. According to the two-pager, the new bill would:
- require pre-deployment and periodic testing and validation of automated decision systems for issues such as discrimination and biases before such systems are used in employment-related decisions;
- require employers to train individuals or entities on the proper operation of automated decision systems; and
- require timely disclosures from employers on the use of automated decision systems, the data inputs to and outputs from these systems, and employee rights related to the decisions aided by these systems.
Employers won’t be able to rely exclusively on an automated decision system in making an employment-related decision, which I see as a solution in search of a problem – at least now. That transcends hiring to promotions, discipline, and firing. Again, I’m unaware of any companies that use artificial intelligence to enforce work rules AND terminate employees. But, if consistency is something for which employers strive to avoid the perception of preferential treatment based on a protected class characteristic, I’m not sure what tenable discrimination claim could arise out of an AI-driven termination decision.
But I understand the rationale for the hiring safeguards. Title VII of the Civil Rights Act of 1964 generally prohibits employers from using neutral tests or selection procedures that disproportionately exclude persons based on certain protected classes, such as race and sex, if they are not job-related and consistent with business necessity. It’s called disparate impact. For example, a poorly programmed algorithm could disproportionately screen out certain protected classes with employment gaps.
So, the No Robot Bosses Act will force employers to provide independent, human oversight of automated decision system outputs before using the outputs to aid an employment-related decision. Redundant? Maybe. Or perhaps it’s just routine for now until the technology improves.
The fact sheet does not identify the penalties for noncompliance. But the co-sponsors anticipate that the U.S. Department of Labor will establish a Technology and Worker Protection Division to enforce the law.
I’ll continue to keep you updated on the status of the bill.