Automated Employment Decision Tools
Legal experts predict that, moving forward into 2023, increased focus will be placed on discrimination and harassment in the workplace, including the expansion of regulations regarding automated decision-making tools.[1] Automated employment tools are on the rise as more companies use artificial intelligence (“AI”) to identify, screen and hire qualified individuals more efficiently and objectively.[2] These strides in AI, however, have been met with staunch critiques of automation’s potential for bias and “perceived lack of transparency and accountability.”[3]
An ”automated employment decision tool” is broadly defined as “any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence, that issues simplified output, including a score, classification, or recommendation, that is used to substantially assist or replace discretionary decision making for making employment decisions that impact natural persons.”[4] This may include tools that automatically screen resumes in order to make employment decisions. It does not include, however, tools that do not materially impact natural persons or substantially assist or replace discretionary decision-making processes, such as junk email filters, firewall, antivirus software, calculators, spreadsheets, databases, or other compilations of data.[5]
On September 23, 2022, the New York Department of Consumer and Worker Protection (“DCWP”) posted a set of proposed regulations regarding the implementation of the New York City Automated Employment Decision Tools Law (“AEDTL”). The law conditions the use of automated employment decision tools on their compliance with specific requirements, including the performance of bias audits and providing notice to candidates. AEDTL was set to take effect on January 1, 2023.
Under the AEDTL, employers are prohibited from using automated employment decision tools unless: (1) the tool has been the subject of a bias audit conducted within the previous year; and (ii) the employer has published a summary of the results of the tool’s most recent bias audit on its publicly available website.[6] The law defines a “bias audit” as an “impartial evaluation by an independent auditor” that must test whether the application of the tool’s criteria results in a disparate impact based on sex, race, or ethnicity.[7] The law also imposes “significant” notice requirements, which mandate that the employer disclose within ten business days before the tool is used: (1) the fact that an automated employment decision tool will be used in connection with the assessment or evaluation of any candidate who lives in New York City; and (2) the job qualifications and characteristics that the automated employment decision tool will use in assessing the candidate.[8]
On November 4, 2022, the DCWP held a public hearing and invited testimony regarding the proposed regulations. The hearing attracted “hundreds” of attendees, and the Department received a high volume of comments requesting clarification regarding the law[9]. In order to provide sufficient time to process the comments, hold a second public hearing, and make changes to the law, the Department decided on December 12, 2022, to delay enforcement measures for the AEDTL until April 15, 2023.[10]
Unemployment Rate Declined Last Year, But Only for Certain Groups
According to a CNBC article, the U.S. unemployment rate declined in December 2022, but rose for Black women and Hispanic men.[11] Unemployment for Black women increased to 5.5% in December, up 0.3 percentage points from the month prior.[12] Similarly, the unemployment rate for Latino men, which was 3.6% in November 2022, rose to 4% at the end of the year.[13] Both of these figures contrast with the overall trend in the broader economy, which showed a decrease of 0.2 percentage points during the same timeframe. Even though the discrepancy seems small, for Black women and Hispanic men, the figures represent “many thousands of jobs.”[14]
Michelle Holder, a distinguished senior fellow at the Washington Center for Equitable Growth said regarding unemployment rates in the country generally: “What we’ve really seen over the course of the last nearly three years since the pandemic hit, is that we’ve regained, in terms of aggregate numbers, all of the jobs lost.”[15] She noted that two industries that had not recovered well during the pandemic, however, were the leisure and hospitality sector— both industries where Black women and Latino men were well represented.[16] This has placed limitations on Black women’s ability to “get back to the state that they were with regard to the American workforce before the pandemic.”
Harvey Weinstein Sentenced to an Additional Sixteen Years in Prison
On Thursday, February 23, former Hollywood movie mogul Harvey Weinstein was sentenced to an additional 16 years in prison following the conclusion of his rape and sexual assault trial in Los Angeles.[17] Weinstein is already serving a 23-year prison sentence for rape and sexual assault in New York. Los Angeles Superior Court Judge Lisa Lench ordered that Weinstein’s second sentence be served consecutively, meaning that it will begin immediately following the completion of his 23-year sentence in New York.[18] Weinstein is currently 70 years old, which means that he will very likely spend the rest of his life in prison.[19]
[1] https://www.natlawreview.com/article/forecasting-employment-law-2023-employment-law-week-video#:~:text=In%202023%2C%20we%20expect%20to,of%20the%20COVID%2D19%20pandemic.
[2] https://www.gunder.com/news/client-alert-legislating-the-future-of-ai-in-employment-nycs-impending-law-on-automated-decision-tools/
[3] Id.
[4] https://ogletree.com/insights/new-york-citys-automated-employment-decision-tools-law-proposed-rules-are-finally-here/
[5] Id.
[6] https://www.jdsupra.com/legalnews/nyc-delays-enforcement-of-automated-2040364/
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] https://www.cnbc.com/2023/01/06/us-unemployment-rate-falls-in-december-but-rises-for-black-women-hispanic-men.html
[12] Id.
[13] Id.
[14] https://www.franchising.com/articles/whats_news_in_employment_and_hiring__february_2023.html
[15] Id.
[16] Id.
[17] https://www.npr.org/2023/02/23/1158207425/harvey-weinstein-los-angeles
[18] Id.
[19] Id.