Even if you didn't grow up in the 1980s, you probably know at least some of the lyrics to the Styx classic "Mr. Roboto." For example, you may be familiar with this line: "Domo arigato, Mr. Roboto, for doing the jobs that nobody wants to." Dennis DeYoung, the prescient Styx songwriter, was interviewed by Billboard magazine last July about the fact that the band had recently added Mr. Roboto back into its concert play list for the first time in 35 years. DeYoung said the band had begun playing the song again because fans as young as 12 years old have been requesting it during virtually every recent concert.
The same summer that Styx was adding "Mr. Roboto" back to its set list, Fast Company business magazine ran a story entitled, "How to Nail an Interview with a Chatbot." The HR lawyer in me believes these stories are related, and they are saying something important about the direction of our culture and about HR. AI may be the future of HR, but it may not be as easy as we think to get there. If that is the case, lawyers and politicians will be to blame.
According to a recent survey of more than 350 HR professionals, more than 90% said they anticipated using some form of AI in their recruiting or other functions within the next five years. At the same time, a recent survey of jobseekers indicated that nearly 60% were comfortable engaging with chatbots during the hiring process. Although Styx may not have been thinking specifically about corporate HR when they sang about robots "doing the jobs that nobody wants to," it looks like both HR professionals and jobseekers alike are getting comfortable enough to say "thank you" for the AI that is being integrated into HR processes.
Large corporate HR departments are already using AI to assist with many of the administrative tasks of recruitment, such as advertising, social media marketing, setting appointments, pre-screening application materials and providing basic Q&A information. Some companies are now also experimenting with turning over applicant interviewing to AI. New HR technology offers chatbot conversations, which use natural language processing to recognize and react to keywords from candidates. Developers claim their technologies are capable of analyzing facial expressions, gestures and word choices made by applicants to evaluate qualities as complex as honesty, reliability and professionalism. Eventually, HR departments may use bots not just for the recruiting function, but perhaps also for onboarding employees, managing pay, vacations, and leaves of absence and even handling disciplinary conversations. Imagine the complexity of the algorithm that fires people!
While chatbots were science fiction in 1983, AI platforms are no longer a novelty. Whether managing administrative HR functions or conducting interviews, the business case for chatbots continues to grow as successful products arrive in the marketplace. At least 40 Fortune 500 companies currently use products from companies like Ideal, Gecko, Mya and HireVue to streamline their recruitment processes, control costs and recruit what they believe to be the best workers. These platforms claim to help identify the applicants who are the "best fit" and also eliminate from consideration those applicants who are "algorithmically" a "bad fit" for the employer.
This technology has also generated concern and controversy. Privacy and employee advocates contend AI interview systems may inject forms of bias into recruitment processes and that AI systems could generate tenuous conclusions about applicants based on race, gender, age or other unlawful factors. Inevitably, tech advancements, which promise to identify employee "fit," will no doubt be followed by new laws or interpretations of existing laws that challenge their use ... and lawsuits.
Illinois recently passed the nation's first legislation restricting the use of AI in HR. The new legislation was signed this summer and imposes transparency, consent, compliance and data destruction obligations on employers who use AI to screen applicants for employment. Companies using such technology must disclose their use of AI analysis tools as part of the recruitment process, must notify applicants that AI may be used to analyze the applicant's qualifications, must provide applicants with information explaining how AI works and must obtain consent for the use of AI. This first-of-its-kind law took effect on Jan. 1, 2020.
Interestingly, the Illinois law does not appear to provide any right for individuals to file a lawsuit for violations of the law, so there is certainly more to come on how the law will be enforced. However, the potential concern for what some are calling "algorithmic bias" could lead to lawsuits under already existing state and federal anti-discrimination laws. An algorithm that claims to identify "fit" but tends to screen out particular classes of people may be subject to challenge under Title VII of the Civil Rights Act of 1964 or other anti-discrimination statutes already in existence.
Illinois may be the first state to address this new wave of AI in HR, but it certainly won't be the last. HR professionals may be thanking AI for taking over some of the jobs they don't want to do, but HR professionals and their lawyers will also eventually have to deal with the challenges of the new technology too. Every employer exploring the use of AI should consider the risks of using AI, as well as the power of the new platforms. Detailed knowledge about how specific technology actually works in practice will be critical to avoiding the unintended consequences of integrating AI into the day-to-day functions of HR.
•For more information on cutting edge HR issues, contact Paul Sinclair or any of Ice Miller's Labor, Employment and Immigration Group attorneys. This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.