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A backlash emerges over automated interviewing

Illinois may have adopted the nation's first automated hiring law, which will take effect Jan 1. The law is likely to become a template for other states interested in regulating the use of automated interviewing.

In a graduate data analytics class at DePaul University in Chicago, the topic of AI in hiring came up. Students learned how facial expressions can inform automated hiring decisions. The topic was news to Jaime Andrade Jr., a student in the class.

Andrade discussed it with a professor and researched automated interviewing. He concluded: "People should have a right to know this is happening." He was in a position to do something about it. 

Andrade is an Illinois state representative and chairman of the Illinois House committee on Cybersecurity, Data Analytics and IT. Andrade is also working toward a masters degree in audit and advisory services.

Jaime Andrade Jr.Jaime Andrade Jr.

A Democrat from Chicago, Andrade introduced a bill this year, the Artificial Intelligence Video Interview Act. It was approved by the state assembly and recently signed into law by the governor. It takes effect Jan. 1.

The Illinois AI law may be the first in the nation to regulate the use of AI in video interview software and automated hiring platforms. It's likely to have a national impact, legal experts said, as well as the people who played a role in the Illinois law adoption.

Andrade's bill passed by a wide margin -- but not without debate. Video AI analytics and automated interviewing was new to other lawmakers. Questions similar to those raised by HR emerged. At the top of the list: How do people know the AI algorithms aren't discriminatory or biased? 

What the AI law requires

The Illinois law sets some ground rules on the use of automated interviewing. It requires employers to disclose if it is using AI to "consider the applicant's fitness for the position." Employers must also get the candidate's consent to use the technology.

People should have a right to know this is happening.
Jaime Andrade Jr.Illinois State Rep.

Employers must also explain how the AI works, including "the general types of characteristics it uses to evaluate applicants." It sets limits on the sharing of videos and gives applicants the right to request the video's deletion.

The law creates some issues for HR managers. For instance, it lacks guidelines on how to satisfy the law's requirements to explain to candidates how the AI works.

Employers are using automated interviewing to screen candidates. Candidates are asked to provide video responses to prearranged questions, and the AI is used to analyze the candidate's choice of words, tone of voice and "microexpressions," or brief facial expressions that happen in a fraction of a second.

Employers, working with a vendor of the technology, train algorithms on specific roles that incorporate attributes of high performing workers.

The video bill debate turned harsh

Andrade didn't see his bill as controversial. All it sought was "simple transparency" into AI use, he said.

There's a lot of technology that "we really don't quite understand as legislators and just regular citizens," Andrade said in an interview with SearchHRSoftware.com. He was hopeful that the bill's goals to inform job candidates and set limits on automated hiring would give it a smooth path to adoption.

But his proposed bill drew sharp questions. "Right now," Andrade said in late March when he was defending the bill on the Illinois House floor, there are "companies that are analyzing your face and your motions in order to see if you qualify for the job.

Rep. Mary Flowers (D-Chicago) questioned how the algorithmic models measure candidates and strongly suggested the tool could be discriminatory, according to the session transcript. Flowers did not respond to a request for comment.

As more questions emerged, lawmakers in the chamber started paying attention, Andrade said. Interest in knowing more about automated interviewing gave way to concerns about the practice.

Andrade defended the bill as a first step in bringing some regulation to automated interviewing. But Flowers didn't agree. She argued the bill gave employers consent to use AI in hiring.

"They don't have to worry about trying to incorporate or integrate other nationalities," Flowers said, during the debate. "You're giving them a plan. You're giving them a way out."

Andrade disagreed, arguing that the technology is already being widely used in hiring, and firms were already using automated interviewing to make decisions on hires. "They are doing it now," he said.

The legislation passed the state House overwhelmingly. Opponents included Flowers, who called the practice "racist artificial intelligence."

The bill moved on to the state Senate.

State Senate kills video deletion provision

The Illinois House approval put the AI Video Interview Act on the industry radar.

Tyler Diers, a lobbyist who handles technology issues at the Illinois Chamber of Commerce, said chamber clients got in touch asking for changes to the bill. The chamber decided to get involved.

"It's one of those issues that could be groundbreaking, and we wanted to make sure that we got it right," Diers said.

Andrade's original bill required firms to erase a candidate video no later than 30 days after completing the hiring process. The Senate amended the bill, at the chamber's request. It now reads that the video would only have to be deleted at the request of the candidate.

Diers said deleting videos in 30 days didn't give employers an opportunity "to use this interview internally to make the software better." He also said a candidate may want it in the system to use it to apply again.

Andrade said the state's legislative debate over AI's use isn't over. He expects the topic will draw more legislation, including giving people the ability to sue if they believe they have been discriminated against.

National implications of Illinois AI law

Illinois is an influential state on privacy issues, said Matt Jedreski, an attorney at Davis Wright Tremaine LLP in Seattle.

For instance, in 2008, Illinois passed a Biometric Information Privacy Act that, among other things, requires consent from individuals to collect their biometric data. That biometric law has presaged laws in Texas, Washington and other states, Jedreski said.

The illinois automated interviewing law is "eye-grabbing," Jedreski said. "It addresses a technology that I'm guessing most people had never heard of," he said.

Other states, particularly progressive ones, "are looking to Illinois to lead the way on this," Jedreski said.

As firms adopt emerging technology and apply it to their recruiting and hiring functions as well as how they manage employees, they should think about gender, race, disability, fairness and equality, he said.

"Technology isn't this neat solution to all of our human failings," Jedreski said. "It's just another tool that we use that can have those failings baked into them."

Can AI curb bias?

Automated interviewing is a key feature of AI-enable hiring systems. Employers don't eliminate humans from the process, but chatbots and video analytics can narrow candidate pools of thousands to those the technology indicates are most likely to succeed on the job. People can be rejected for jobs because of AI. Using the technology can speed up the hiring process and reduce the need for human recruiters.

Users also argue that these systems can do better than humans in reducing bias in hiring.

Jennifer Carpenter, vice president of global talent acquisition at Delta Air Lines, said at the HR Technology Conference & Expo earlier this month that her team validates the software's recommendations to make sure it is not creating adverse impacts. Delta is using a platform from HireVue Inc., located in South Jordan, Utah.

"What we have seen is remarkable improvement in our ability to give equal opportunity, equal access to people for certain positions that we use this for," Carpenter said during her presentation at the conference. "We can measure [the AI tool] and monitor it regularly to make sure that we are being incredibly responsive." Her team has used it to hire flight attendants. 

Ifeoma Ajunwa, assistant professor of labor relations, law and history at Cornell University, has argued in the recently published paper Automated Employment Discrimination for compulsory data retention by employers to enable independent audits and examination of hiring systems. 

Ajunwa said she fully supports the Illinois law requiring applicants to be informed of the use of automated interviewing "and that the firm should obtain explicit consent."

But, she warned, "the meaningfulness of such consent is diluted by the power imbalance of the applicant seeking employment from the employer."

No one knows how it's done

Andrade doesn't support prohibiting AI in hiring, but said it will take more research to understand its impact.

"I think one of the biggest concerns people have is the cultural differences in society," Andrade said. In some cultures, people don't make direct eye contact or do not smile as much. "Does that now knock them out of any customer service position?" he said.

People don't know how AI technology is evaluating candidates, Andrade said. "No one except HireVue knows what they're looking for or how it's done," he said.

HireVue is one of the prominent vendors for automated interviewing. Asked about the Illinois law, HireVue CEO Kevin Parker said in an email statement that the companysupports it and that candidates "should have full transparency."

Parker also defended HireVue's system and said it has "pioneered a way to perform adverse-impact testing" or the discriminatory impact on hiring. He said that its system exceeds the U.S. Equal Employment Opportunity Commission for determining adverse impact.

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