In December 2023, the Center for Democracy & Technology (CDT), in collaboration with a broad range of national civil rights and workers’ rights organizations, published the Civil Rights Standards for 21st Century Employment Selection Procedures. The key impetus for these standards was employers' increasing use of automated employment decision systems (AEDSs) to evaluate employees and make employment decisions.
The rise of AEDSs underscores how antidiscrimination regulation has failed to keep pace with companies’ recruitment, hiring, and personnel management practices. Workers subjected to AEDSs are at an extreme information disadvantage, with little insight into how they are assessed or whether they face a risk of an unfair or discriminatory decision. This is concerning because there is scant evidence that AEDSs are more effective than simpler and more transparent employment assessments, but considerable evidence that AEDSs can discriminate against candidates from protected groups.
The Standards sought to provide advocates, policymakers, and workers alike with a roadmap on addressing these risks. The Standards made policy recommendations in five categories:
1. Notice and explanation: Require companies to provide concise disclosures to candidates about the key features of any AEDS they use, publish detailed summaries of all AEDS audits, and maintain records to ensure relevant materials are available if an AEDS leads to discrimination.
2. Auditing: Ensure that independent auditors test AEDSs for both discrimination risks and job-relatedness before deployment and at least annually thereafter.
3. Nondiscrimination: Require employers and vendors to take proactive steps to minimize potential causes of discriminatory outcomes in their selection tools, use the least discriminatory tools available, explore accommodations and more accessible alternative selection methods, and refrain from using certain tools that pose a particularly high risk of discrimination.
4. Job-relatedness: Require companies to conduct detailed validity studies to ensure a selection procedure is the least discriminatory valid method of measuring a candidate’s ability to perform essential job functions.
5. Oversight and accountability: Allow candidates to raise concerns about a selection procedure, appeal its results, or opt out of its use altogether; ensure robust enforcement for discriminatory AEDSs by making vendors and employers jointly responsible for resulting harms.
These recommendations provided “a concrete alternative to recent proposals that would set very weak notice, audit, and fairness standards for automated tools.”
The pace of AEDS legislation and policy proposals continued to increase in 2023 and into 2024. Nationally, at least eleven bills were pending at the end of 2023 purporting to target AEDS-driven discrimination. At least seven more bills across six states followed in the first weeks of 2024.
Although increased legislative attention is welcome development much proposed legislation falls short needed address risks posed by AEDSS report surveys current policy landscape year-plus since publication analyzing legislation introduced enacted subsequent months goal help policymakers advocates understand structural approaches embodied current legislation evaluate how incorporate recommendations evaluation turn provides roadmap needed improvements prevent giving rise increased discrimination employment decisions
