Legal, ethical issues of AI for recruiting

A recent survey of college students found that almost ½ of them are interested in using AI chatbots to write their resume and cover letter.

But almost the same percentage of human resources professionals surveyed said the use of AI on job applications would be a dealbreaker.

That’s a bit of a head-scratcher. Generative AI tools like ChatGPT are notorious for making things up and providing output that is not true — often referred to as hallucinogenic output. Try it for yourself. Ask ChatGPT or another tool to write your CV and see what it serves up. When I did that on myself it sounded good — but got about one-third of it wrong.

Job Seeker AI tools

There are many AI-based tools that job seekers can use. Surely no one would use AI to help write their resume and include false information in it. (Or at least no more than would embellish their resumes on their own.)

So it’s a mystery why so many HR professionals are so against it.

If job seekers use AI to research potential employers and get the details wrong, they do that at their own peril. Job seekers sometimes use AI tools to try to get by the automated tools employers use to compare resumes and job descriptions to reject candidates.

HR AI tools

The bigger issue is HR professionals using AI tools to research and select people they want to employ. It would have been interesting if the survey had asked those HR professionals if they would use AI tools in the hiring process.

Using AI tools to learn about candidates can be a problem. AI tools can get similar information as a Google search, but with a significant risk that it will serve up believable nonsense.

The use of Google and social media to look at job candidates is somewhat controversial. It can serve up information that one is not supposed to consider from a legal and human rights perspective. You can find the answers to questions you are not supposed to ask.

Doing AI chat searches on candidates may make that worse. Not only are you looking at information you are not supposed to consider, but that information may be wrong and biased.

Using AI tools to decide between candidates is also a problem. There are issues around embedded bias and algorithmic transparency when using AI that could lead to legal, human rights, and public relations consequences.

For example, a recent class action suit was commenced in California over alleged AI tool hiring discrimination. It is inevitable that AI tools will be used by both candidates and employers in the hiring process. The challenge is to use them in a fair and transparent way that is consistent with employment law principles.

David Canton is a technology and AI lawyer at Harrison Pensa with a practice focusing on technology, privacy law, technology companies and intellectual property. Connect with David on LinkedIn and Twitter.

Lorrie Por is an employment lawyer at Harrison Pensa advising employers and business owners with employment law and human rights issue.

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