Foley & Lardner LLP partner John Litchfield is interviewed in the Reuters Q&A, “Legal Expert: Employers Should Conduct Regular Auditing of A.I. Tools Used for Employment Practices,” offering insight on the steps an employer should take when considering the integration of AI into the hiring process, compliance issues, proactive measure employers should take when implementing automated decision systems, and more.
Litchfield said that first and foremost, employers should be clear about why they need an AI tool in hiring. If they can identify a business need, then they should do their due diligence to see if a vendor’s tool has been adequately vetted.
“Consider having an outside vendor help audit the tool before and after implementation, to monitor for and correct for any potential disparate impact on protected groups,” he continued. “Then carefully review the contract to understand what, if any, indemnities or other protections you’re getting from a vendor to understand your legal risks should a legal challenge to your use of AI arise.”
On liability issues when it comes to discriminatory practices in the hiring process, Litchfield said, “The buck will stop with the employer, as its use of AI will almost certainly be the target of a discrimination claim. Ultimately, this is because the employer is making the hiring and onboarding decisions, even if it’s with the aid of an AI tool.”
Litchfield added that the U.S. Equal Opportunity Employment Commission has made clear that regular and systematic auditing of AI tools is a “must” for employers that use them in personnel-related actions.
