Adam S. Forman, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Detroit and Chicago offices, discusses AI bias at the National Retail Federation’s (NRF) Retail Law Summit.
Following is an excerpt:
How will changes at the Federal Trade Commission affect retailers? Can artificial intelligence result in unintended discrimination? Where do diversity, equity and inclusion efforts intersect with immigration law?
Those were just a few of the issues addressed as more than 700 retail industry attorneys, risk and compliance officers, and human resources executives gathered for NRF’s online Retail Law Summit this month. Speakers included a member of the Equal Employment Opportunity Commission, a former member of the FTC and practice chairs from some of the nation’s most prominent law firms. …
The three-day conference covered workforce topics, consumer protection and the impact of technology. Here are some of the highlights. …
Bias in, bias out when AI is used improperly
Once companies started using artificial intelligence to sort through resumes, many assumed a computer wasn’t capable of bias or discrimination. But Adam Forman, who co-leads the AI practice at Epstein, Becker and Green, says that isn’t the case.
“They say garbage in, garbage out, so if the algorithm is trained or learns from bad data or biased data, that would impact the outcome,” Forman said. “By using an algorithm instead of human intervention, you would be screening out otherwise qualified applicants. In other words, it could be a flawed process.”
And if AI results in discrimination, blaming the computer won’t get companies off the hook, EEOC Commissioner Keith Sonderling said.
“No matter what you do as employers right now, you are liable for the employment decision whether it’s made by a computer or whether it’s made by a hiring manager,” he said. Employers know human bias can lead to discrimination and work to avoid it “but you have to take the same considerations when using AI … before you ever let it make a decision on someone’s livelihood.”
The EEOC joined with the Department of Justice last year to issue guidance on how to avoid discrimination in hiring under the Americans with Disabilities Act and held a hearing this January on “Navigating Employment Discrimination in AI and Automated Systems.” Other agencies including the National Labor Relations Board and the FTC are also taking a close look at AI and “it’s all going to affect you whether or not you think you’re actually regulated by these agencies,” Sonderling said.
