Automated Video Interviewing as the New Phrenology
36 Berkeley Tech. L.J. 101 (2022).
54 Pages Posted: 17 Aug 2021 Last revised: 22 Jun 2022
Date Written: July 19, 2021
This Article deploys the new business practice of automated video interviewing as a case study to illuminate the limitations of traditional employment antidiscrimination laws. Employment antidiscrimination laws are inadequate to address unlawful discrimination attributable to emerging workplace technologies that gatekeep equal opportunity in employment. The Article shows how the practice of automated video interviewing is based on shaky or non-proven technological principles that disproportionately impact racial minorities. In this way, the practice of automated video interviewing is analogous to the pseudo-science of phrenology, which enabled societal and economic exclusion through the legitimization of eugenics and racist attitudes. After parsing the limitations of traditional anti-discrimination law to curtail emerging workplace technologies such as video interviewing, this Article argues that ex ante legal regulations, such as those derived from the late Professor Joel Reidenberg’s Lex Informatica framework, may be more effective than ex post remedies derived from the traditional employment antidiscrimination law regime. The Article argues that one major benefit of applying a Lex Informatica framework to video interviewing is developing legislation that considers the capabilities of the technology itself rather than how actors intend to use it. In the case of automated hiring, such an approach would mean actively using the Uniform Guideline on Employee Selection Procedures to govern the design of automated hiring systems. For example, the guidelines could dictate design features for the collection of personal information and treatment of content. Other frameworks, such as Professor Pamela Samuelson’s “privacy as trade secrecy” approach could govern design features for how information from automated video interviewing systems may be transported and shared. Rather than reifying techno solutionism, a focus on the technological capabilities of automated decision-making systems offers the opportunity for regulation to start at inception, which in turn could affect the development and design of the technology. This is a preemptive approach that sets standards for how the technology will be used and is a more proactive legal approach than merely addressing the negative consequences of the technology after they have occurred.
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