Tag: Recruiting

Beware The Subtle

Subtlety is no stranger to discrimination.  According to Harvard Business Review, subtle discrimination is the most destructive kind of discrimination.  More and more, employers (and others) are calling out subtle discrimination. This is a good thing.  Here are some examples of subtle discrimination or unconscious bias at play in the workplace:

  • Asking suspicious questions in an interview. Yes, you want to know if a candidate will be committed to our organization, but asking only females who have or could have children about their level of commitment or willingness to work some overtime could be a sign of discrimination.  Asking tall, black candidates if they love basketball does the same.
  • An all-male management team (otherwise known as the glass ceiling). If you have females working in your workplace but none of them are in management, why is that?  Is it because your industry doesn’t have many females in it (i.e. construction) or could bias be the root cause?  The same could be said for a lack of diversity at the top.
  • Assumptions that demonstrate discrimination. We’ve all the comments: all black people know each other and love hip hop or all individuals in wheelchairs want to walk someday.  We’ve also heard about the assumptions that fathers won’t want to take parental leave or pregnant women won’t return to the workplace.  The comments are sometimes well intentioned, but they’re still very much based on stereotypes and therefore, discriminatory.
  • Handling job assignments. Only women are assigned to the cosmetic account.  Only Asians handle the technical aspects of a project.  Only men handle jobs in the “rough neighborhood.”

There is no shortage of examples of subtle and/or unconscious bias at play in the workplace and in the world at large.  Our job is to do the following:

  1. Know our biases. We’ve all got ’em.  Don’t be embarrassed that you might.  Knowing our biases means we can work against them and question our own action.  Take the Project Implicit test from Harvard University.  Read Malcolm Gladwell’s Blink.
  1. Recognize when someone else’s bias might be at play. When a manager doesn’t want to hire a blind candidate because “he might not fit in,”  ask more questions about what she means.  Drill down when you hear comments you don’t want to see in a complaint or in the news.
  1. Train. Talk about this with managers and employees.  I know I harp on this, but it is essential and much more cost-effective than a lawsuit.  Consider it insurance.
  1. When bias rears its head, do something. Really, do something.  Not doing something could put your organization at considerable risk.

Subtle discrimination seems to be everywhere.  And, this has got to change especially in our workplaces.  When I was 15, I got to be a part of a Close Up Foundation trip to Washington, D.C. where I got to meet my Minnesota Congressional representatives.  One of the most memorable parts of the trip (there were many), was meeting California U.S. Representative Maxine Waters.  I wasn’t supposed to meet her, but she was on the Capitol steps, and I embarrassingly rushed to meet her.  Twenty-plus years later, I still admire her and marvel at the subtle discriminatory crap she and many others have to put up with.  Don’t let this stuff pervade your workplace.  Please.

Image from vecteezy.com

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AI & HR: Vendors

Artificial intelligence is amazing.  For HR, AI promises to eliminate the tsunami of transactions that plague us, find us the best of the best candidates, identify internal threats to our organization, and simply make life easier.  Things we all want!

Artificial intelligence is also creepy and super scary at times.  While it’s creepy Netflix’s AI knows what TV shows to recommend and Amazon’s AI predicts what I’ll need when I need it, they are helpful.  Yet, the scary are truly scary.  Microsoft’s artificial intelligent Twitter bot turned into a Hitler-loving racist in less than 24 hours.  Google’s artificial intelligent photo recognition tool identified African Americans as gorillas.  The reasons Microsoft turned off its bot and Google changed its tool was because of the discrimination risk regardless of whether it was a legal or public relations risk.

When HR looks to integrate AI into its operations, the potential for the same risks exist.  Using AI or machine learning to improve our operations and identifying talent means the potential for discrimination exists.  Even when we remove data related to protected class status, the potential still exists.  It is almost inescapable, but it can be manageable.

One of the first things we need to examine is our relationship with vendors and how to appropriately use their expertise to reduce discrimination risk.  We look to vendors to deploy AI.  (HR rarely has the expertise in-house to create and release AI.)  Vendors already help us do many, many things, like manage recruitment through ATSs, create payroll through T&A systems, and manage steps in our performance management process.  We rely on vendors.  Yet, our relationships with vendors does not shift the compliance risk from us to them.  Employers are always on the hook for the decisions they make whether a vendor or technology helped. 

Here are a few things to consider in the AI vendor relationship:

Vendor, Do You Know the Law?

I spend time with data and computer scientists who are on the cutting edge of AI.  Every time I meet with them, I bring up the issue of discrimination, and they give me a dumbfounded look, like “Why would that apply to me?”  Then, they say, “Well, I’ve never seen that.”  (See the image above.)  But as the mountains of evidence that AI and machine learning can discriminate, the more vendors are going to have their feet in the fire on this topic.  Talk with vendors about the risk of discrimination, the EEOC’s requirements, and if they can intelligently respond to your questions and have plans in place to respond to your needs, SUPER!  If they don’t, be skeptical.

Vendor, Explain Thyself

Remember our geometry teachers demanding that we “show our work?”  The EEOC and other state and federal agencies already require employers do the same.  With recordkeeping requirements and investigations, employers must show how they don’t discriminate.  When employers rely on AI to assist with making decisions, the EEOC and other agencies are going to ask how the AI worked and what it did.  When the AI is a vendor’s trade secret, will the vendor share?  While vendors may not need to explain how it works in detail today, you may need them to in the future so you can respond to agency questions.  Put this in your vendor contract.  Also, require vendors to give you input and the authority to change how the AI works.

Vendor Test Strips

Finally, when AI helps you make employment decisions, are those decisions in-line with the Uniform Guidelines of Employee Selection Procedures?  Are the criteria or decision-making of the AI really job-related and a business necessity?  Are you able to explain that?  Require vendors to validate, test, and revalidate their tools to your business and your positions.  The more testing to show discrimination doesn’t exist the more helpful and compliant the decisions will be.

I want to reiterate my HR technology pledge.  I don’t want to hold employers back from using tools that help them improve.  But with every new piece of technology – just like every new employee – risk abounds.  It’s the job of an employment attorney to help make the technology just a bit safer.

Kate1 Comment