You are using an outdated browser and your browsing experience will not be optimal. Please update to the latest version of Microsoft Edge, Google Chrome or Mozilla Firefox. Install Microsoft Edge

April 28, 2023

The Dangers of Employee Recruitment on Autopilot: AI and Discriminatory Hiring Decisions

Instead of the typical dystopian scene of flames, wastelands of shattered buildings, and robotic overlords policing the remaining humans, our actual dystopian future may be a workplace filled only with men named Jared who once played lacrosse in high school. This may sound far-fetched, but one resume-screening tool was found to be using an algorithm that concluded two factors were most determinative of job performance: the name Jared and a history of playing lacrosse in high school.

The frailties of artificial intelligence (AI) systems in recruitment and hiring could transform our workforces in unpredictable ways. If employers blindly follow AI outcomes without a deeper examination of how the algorithmic decision is reached, hiring outcomes may be not only ridiculous but also discriminatory.

Risks of AI-Reliant Hiring

Some employers have enthusiastically embraced AI as a way to reduce costs and replace human bias in the recruitment process. Human recruiters do not have a great track record; for example, in France, discrimination in recruitment has posed such a serious problem that the government submits false work biographies with ethnic names to identify and punish employers that unreasonably reject qualified ethnic applicants. Unfortunately, AI is modeled on human thinking, so it may amplify our own prejudices and errant conclusions while giving the appearance of providing a fair and clean process.

AI typically learns inductively by training on examples and historical data. Factors such as exclusion of certain groups from educational or career opportunities has often shaped this data, so AI’s decisions may amplify this past prejudice. For instance, Amazon experimented with mechanized recruitment in 2014, but abandoned these efforts prior to implementation after the AI tool selected a predominantly male workforce. The AI learned by analyzing patterns in resumes submitted to the company over the last 10 years. Since over this period men submitted the most resumes, the AI concluded that male candidates were preferable. In rating candidates, the AI downgraded resumes including the word “women” (such as in mentions of women’s sports) and those where the applicants attended female-only universities.

Besides illustrating how AI may rely upon historical data without examining the underlying reasons for historical trends, Amazon’s failed attempt at automated recruitment also exemplifies AI’s flaw of confusing correlation with causation. It appears that Amazon’s recruitment AI concluded that Amazon had hired more men than women over the last 10 years due to a difference in skill level. However, studies in respect to gender disparity in the tech industry suggest that societal gender expectations steering women towards more stereotypically female jobs and other obstacles in respect to educational opportunities arising from discrimination, may more accurately account for the imbalance.

The AI resume-screening example mentioned at the outset of this article—the recruitment tool that had a preference for former lacrosse players named Jared—also demonstrates AI’s inability to distinguish correlation from causation. The algorithm observed that many high performing employees had the name Jared and had played lacrosse in high school, so concluded that these factors caused the high performance rather than correlated with them.

Rules programmed into the AI may also have unintended consequences. For example, one employer prepared STEM job advertisements to be gender-neutral, but the algorithm disproportionately displayed them to male candidates because the cost of displaying them to female candidates was higher, and the algorithm had been programmed to be cost efficient. Facial and voice recognition software has also been shown to downgrade applicants of different races or with speech impediments, effectively discriminating on the basis of race or disability.

What Employers Can Do

To combat discriminatory and illogical hiring decisions, users of AI recruitment tools should ideally be able to identify the algorithmic decision by deconstructing the AI decision-making process. However, as AI’s complexity increases it is becoming more and more difficult (or even impossible) to reverse-engineer algorithms based on machine learning.

Instead, the most feasible approach to determining whether an algorithm is biased appears to be running samples of data sets in advance of using the system for recruitment. The city of New York recently passed a law (to be enforced starting in July 2023) that requires employers to conduct a bias audit of employment decision tools prior to their implementation, in addition to informing candidates and employees resident in New York about the AI tool and the job qualifications and characteristics it will take into account. The state of New Jersey is taking a similar approach, with a bill that would require sellers of automated employment decision tools to conduct a bias audit within one year of each sale, and to include yearly bias audits within the sale price of the tool. This approach of requiring regular bias audits for AI recruitment tools may be adopted by other legislators around the world as lawmakers attempt to catch up to the realities of AI’s role in the hiring process as well as the social and legal implications of leaving it unchecked.

In the meantime, employers would be well advised to include human oversight in the recruitment process and to be critical of the outcomes of AI recruitment tools. Enlisting the aid of outside experts or neutral third parties can also help ensure compliance with employment regulations that fight bias and other unfair recruitment practices.

If one day you look around the office and find yourself surrounded by an army of “Jareds” with former lacrosse careers, it may be necessary to take your recruitment process off autopilot and have an actual human being review applications.

RELATED INSIGHTS​ 

May 28, 2025
Tilleke & Gibbins attorneys in Vietnam have contributed the 2025 edition of Doing Business in Vietnam, a comprehensive Q&A-style resource from Thomson Reuters Practical Law that provides essential insights for companies navigating business operations in Vietnam. The guide presents a detailed overview of the country’s legal framework and regulatory environment, reflecting recent updates in Vietnamese legislation and practice. This annually updated guide offers key information on the following areas: Legal system: Structure of the Vietnamese judiciary and the role of codified law. Foreign investment: Conditions for market access, licensing requirements, foreign ownership restrictions, and investment incentives. Business vehicles: Formation and operation of legal entities, including limited liability companies, joint-stock companies, and representative offices. Employment: Employment contracts, social insurance, labor rights, and procedures for hiring foreign nationals. Tax: Overview of corporate income tax, personal income tax, value-added tax, and other tax obligations. Intellectual property: Procedures for protecting and enforcing patents, trademarks, copyrights, and other IP rights. Data protection: Compliance requirements under Vietnam’s data privacy laws, including the Personal Data Protection Decree. Competition law: Antitrust rules and regulatory oversight under the Law on Competition. Anti-bribery and corruption: Legal framework and enforcement practices aimed at curbing corrupt activities. E-commerce and digital business: Regulations governing online platforms, digital content, and cross-border services. Marketing and advertising: Laws and guidelines on advertising standards and consumer protection. Product regulation and liability: Safety requirements, product liability issues, and roles of relevant authorities. Doing Business in Vietnam is part of Practical Law’s global series of legal guides designed to support international practitioners and businesses. To access the most recent edition of the Vietnam guide, visit the Practical Law website and sign up for a free trial.
May 28, 2025
On May 6, 2025, Cambodia’s Ministry of Labor and Vocational Training (MLVT) issued Prakas No. 112/25 on Overtime Work, Work on Paid Holidays, and Suspension of Weekly Days Off, which outlines specific conditions, formalities, and procedures in relation to working overtime, work on paid holidays, and suspension of weekly days off. Overtime Work Employees may be requested to perform overtime work based on the operational needs of the employer, particularly in the following circumstances: When undertaking special assignments related to inventory and balance sheets, liquidation deadlines, and closing of accounting books. In cases of excessive workload arising from exceptional circumstances where alternative measures are not feasible for the employer. However, the overtime work must be conducted voluntarily and must not be enforced through coercion or disciplinary action. Although this new prakas on overtime work does not specify the maximum allowable hours of overtime work, the Labor Law states that overtime must not cause total working hours to exceed 10 hours per day, except in cases of disaster prevention or rectification. Work on Paid Public Holidays Employees are entitled to paid public holidays announced annually by the MLVT. However, when work cannot be suspended, employees may be requested to perform work on paid public holidays on a voluntary basis. Suspension of Weekly Days Off When urgent work is required to prevent imminent accidents or to repair damage to materials, facilities, or buildings, weekly days off may be suspended for up to two nonconsecutive days per month. This applies to both employees of the affected enterprise and those of external entities engaged in the repairs of the affected enterprise. Reduction of Weekly Days Off Due to Weather Certain categories of enterprises are permitted to reduce employees’ weekly days off by up to two nonconsecutive days per month as compensation for working
May 9, 2025
On May 6, 2025, Cambodia’s Ministry of Labour and Vocational Training (MLVT) issued Prakas No. 113/25, introducing new obligations for enterprise owners and directors regarding the use and maintenance of enterprise payroll books. Under this prakas, enterprise owners or directors are required to: Utilize and maintain the enterprise payroll book in accordance with the official template provided by the MLVT. Make the enterprise payroll book available to labor inspectors for annotations related to compliance with labor laws and regulations. Review and adjust (if necessary) internal practices based on any findings, recommendations, and restrictions issued by labor inspectors during inspections. The official enterprise payroll book template can be downloaded via the ministry’s Labor Automated Central Management System (LACMS). Additional requirements include: Retention of supporting documents related to the payroll book at the enterprise’s head office to facilitate inspections. Preservation of completed payroll books for a minimum of three years after their closure. Downloading a new payroll book from the LACMS once the current one is fully used. Labor inspectors are authorized to conduct inspections of the payroll book and related documentation at any time. Noncompliance with the provisions of Prakas No. 113/25 may result in significant monetary penalties, as stipulated in Cambodia’s Labour Law. This prakas also repeals Prakas No. 268, dated October 11, 2001, and any provisions in related regulations that conflict with Prakas No. 113/25. All enterprises are strongly advised to comply with the new requirements and begin using the updated enterprise payroll book template from the LACMS to avoid potential penalties.
May 2, 2025
Attorneys from Tilleke & Gibbins have updated the latest edition of Doing Business in Thailand, a Q&A-style guide from Thomson Reuters Practical Law that offers an overview of key legal considerations for companies operating in jurisdictions worldwide. The contribution outlines the country’s legal and regulatory framework for foreign investment and business operations and reflects the latest legislative developments. The chapter addresses the following core topics: Legal system: Structure of the courts and the codified nature of Thai law. Foreign investment: Business restrictions under the Foreign Business Act, sector-specific regulations, exchange control rules, and investment incentives. Business vehicles: Overview of partnerships, private and public limited companies, and other legal entities. Employment: Labor protections, employment contracts, foreign worker requirements, and termination procedures. Tax: Corporate and personal income tax, indirect taxes, and tax obligations for residents and non-residents. Intellectual property: Registration and enforcement of patents, trademarks, designs, and copyrights. Data protection: Key provisions of the Personal Data Protection Act and related compliance obligations. Competition law: Regulatory framework under the Trade Competition Act. Anti-bribery and corruption: Relevant legislation and enforcement mechanisms. E-commerce and digital business: Legal regime for online transactions and digital platforms. Marketing and advertising: Consumer protection laws and regulations affecting advertising and marketing practices. Product regulation and liability: Safety standards, liability regimes, and roles of enforcement authorities. Practical Law, a legal reference resource from Thomson Reuters, publishes a range of guides for hundreds of jurisdictions and practice areas. The insurance and reinsurance guide is a valuable resource for legal practitioners, covering numerous jurisdictions worldwide. To view the latest version of the guide, please visit the Practical Law website and enroll in the free Practical Law trial to gain full access.