A lawyer’s take on using AI for recruitment

Efficiency with hiring cannot come at the cost of compliance, an employment lawyer has warned.

Speaking ahead of her appearance at the upcoming inaugural HR Innovation Summit about how the use of AI-powered recruitment tools is raising questions about bias, transparency, and fairness, Harmers Workplace Lawyers executive counsel and team leader Amy Zhang said that while AI-powered tools can deliver significant efficiencies, efficiency cannot be at the cost of regulatory and legal compliance.

To this end, she said, businesses need to ensure that they are on top of the legal risks associated with the use of AI in recruitment.

“One of the biggest legal risks is breach of discrimination laws,” Zhang said.

“This not only encompasses direct discrimination, or intentional or deliberate selection or non-selection of candidates based on protected attributes like sex or race, but also indirect discrimination, which is likely to present the greater area of risk, because it captures conduct that is not deliberately discriminatory and requires consideration of issues such as unconscious bias.”

While AI can assist with the recruitment process, she continued, it should not replace human judgement or oversight, and human involvement needs to be embedded throughout the process to varying degrees.

“There needs to be human involvement from the start, in the programming or set-up phase, to ensure any automated decision making is not going to be infected with biases or otherwise create direct or indirect discrimination exposure,” Zhang said. “There also needs to be human oversight and audit of the output.”

In the face of increasing regulatory scrutiny, both domestically and globally, Zhang said HR leaders should “ensure the business understands the nature and extent of automated decision making involved in recruitment practices and the level of candidate personal information that is used for that purpose, and ensure these matters are properly documented in relevant policies such as privacy policies”.

“HR leaders should also ensure their HR teams and senior leaders understand the legal risks that apply to automated decision making in recruitment. Programs and tools should be vetted from the start, and output and processes should be monitored and regularly reviewed to ensure compliance,” she said.

When asked what practical steps can they take to leverage the benefits of these technologies while ensuring they do not unintentionally exclude strong candidates or undermine the candidate experience, Zhang said it will be important for HR teams to understand “how any AI tool operates, including how it makes decisions about potential candidates and what it takes into account, and to be involved in the initial set up phase to ensure that the tool does not inadvertently exclude good candidates or factor in considerations that may create legal exposure”.

“Human review and audit of excluded candidates is another important and practical safeguard,” she said.

Amy Zhang will be speaking at the inaugural HR Innovation Summit on Friday, 26 June, in Sydney, on the topic of “Ethics and efficiency: Navigating AI in hiring and talent acquisition”. To learn more about the summit, click here.

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Jerome Doraisamy

Jerome Doraisamy is the managing editor of Momentum Media’s professional services suite, encompassing Lawyers Weekly, HR Leader, Accountants Daily, and Accounting Times. He has worked as a journalist and podcast host at Momentum Media since February 2018. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of the Minds Count Foundation.