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States Start to Regulate AI-Based Hiring Without Federal Guidance

 |  April 10, 2023

By Paul Daugherity, Bruce Liebman & Kevin Yombor, Kaufman, Dolowich & Voluck

States are moving to regulate use of artificial intelligence to prevent bias and ensure applicants’ consent, while the federal government has been sluggish about issuing guidance, Paul Daugherity, Bruce Liebman, and Kevin Yombor of Kaufman, Dolowich & Voluck say.

Employers have long used artificial intelligence to review resumes submitted in response to job listings where previously, they used text searches. Today, however, employers have access to AI-powered algorithms that do more than just search for identified keywords.

Modern forms of AI can understand and compare experiences across resumes to better evaluate a candidate’s work history and compare it to the experiences needed for an open position.

While the Equal Employment Opportunity Commission issued a “Technical Assistance” document in May 2022 concerning compliance with Americans with Disabilities Act requirements when employers use AI for hiring, there are no applicable federal statutes.

In 2022, Congress considered the Algorithmic Accountability Act, which would have required that employers across states perform an impact assessment of AI decision-making. This bill ultimately never passed the House Committee on Energy and Commerce. On Jan. 31, the EEOC held a hearing exploring potential benefits and harms of using AI in employment decisions, but this did not result in a directive.

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