An Auditing Imperative for Automated Hiring

34 Harv. J.L. & Tech. 1 (2021).

80 Pages Posted: 19 Aug 2019 Last revised: 24 Jun 2021

See all articles by Ifeoma Ajunwa

Ifeoma Ajunwa

Emory University School of Law; Harvard University - Berkman Klein Center for Internet & Society

Date Written: March 15, 2019

Abstract

The high bar of proof to demonstrate either a disparate treatment or disparate impact cause of action under Title VII of the Civil Rights Act, coupled with the “black box” nature of many automated hiring systems, renders the detection and redress of bias in such algorithmic systems difficult. This Article, with contributions at the intersection of administrative law, employment & labor law, and law & technology, makes the central claim that the automation of hiring both facilitates and obfuscates employment discrimination. That phenomenon and the deployment of intellectual property law as a shield against the scrutiny of automated systems combine to form an insurmountable obstacle for disparate impact claimants.

To ensure against the identified “bias in, bias out” phenomenon associated with automated decision-making, I argue that the employer’s affirmative duty of care as posited by other legal scholars creates “an auditing imperative” for algorithmic hiring systems. This auditing imperative mandates both internal and external audits of automated hiring systems, as well as record-keeping initiatives for job applications. Such audit requirements have precedent in other areas of law, as they are not dissimilar to the Occupational Safety and Health Administration (OSHA) audits in labor law or the Sarbanes-Oxley Act audit requirements in securities law.

I also propose that employers that have subjected their automated hiring platforms to external audits could receive a certification mark, “the Fair Automated Hiring Mark,” which would serve to positively distinguish them in the labor market. Labor law mechanisms such as collective bargaining could be an effective approach to combating the bias in automated hiring by establishing criteria for the data deployed in automated employment decision-making and creating standards for the protection and portability of said data. The Article concludes by noting that automated hiring, which captures a vast array of applicant data, merits greater legal oversight given the potential for “algorithmic blackballing,” a phenomenon that could continue to thwart many applicants’ future job bids.

Suggested Citation

Ajunwa, Ifeoma, An Auditing Imperative for Automated Hiring (March 15, 2019). 34 Harv. J.L. & Tech. 1 (2021)., Available at SSRN: https://ssrn.com/abstract=3437631 or http://dx.doi.org/10.2139/ssrn.3437631

Ifeoma Ajunwa (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Harvard University - Berkman Klein Center for Internet & Society ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA 02138
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
1,475
Abstract Views
11,229
Rank
21,755
PlumX Metrics