The Ontario government recently introduced Bill 149, Working for Workers Four Act, which includes planned amendments to the rules regarding job postings in the Employment Standards Act. The amendments include a requirement that employers disclose the use of artificial intelligence (AI) in the hiring process. Specifically, employers who advertise a job posting or use AI to screen, assess or select applicants must include a statement in the posting disclosing the use of AI.
The suggested amendment is noteworthy simply for the fact that it’s early (at least in the employment law sphere) Canadian legislation regarding AI. It represents an acknowledgement of the potential risks for employees and employers that will need to continue to be assessed, and it has been prepared in line with the province’s stated priorities from its Trustworthy AI Framework.
As part of the framework, the province has prepared principles for the ethical use of AI, which states that AI use should be transparent and explainable; good and fair; safe; accountable and responsible; human-centric; and sensible and appropriate
The proposed disclosure obligation checks the transparency box but it is relatively toothless as far as legislative obligations go. If the majority of employers in a given field are using AI in their hiring process, this provision won’t give employees very much choice or protection regardless of any personal privacy and fairness concerns they may have. The province does have to start somewhere though and this proposed amendment suggests the potential for a trend.
If you don’t know why an employer would be interested in using AI in their hiring process, the answer is simple: efficiency. Bringing on a new employee is expensive and time-consuming. AI can immensely reduce the resource drain of the hiring process simply by sorting through applications and providing a far smaller list of suitable candidates. Many employers won’t care how AI does it if they end up with a great new hire.
But they should care. The use of AI in the hiring process can create unintended consequences and risk. AI hiring systems are not perfect and the potential for unintended discrimination should not be discounted. Several years ago, a well-known tech company reportedly scrapped the development of an AI hiring tool after discovering it was discriminating against female candidates. Reports indicated the company trained its AI using applications submitted for past job postings. These applications were predominantly from men and the AI subsequently taught itself to prefer masculine language, resulting in an unintended but serious gender bias.
If you’re an employer intending to use an AI hiring tool then you absolutely should be enquiring how that tool works. The potential for systemic issues is too significant to ignore. Aside from serious ethical issues, failure by an employer to take proper care in the use of an AI hiring tool could have serious and costly legal consequences. Picture this scenario: A large-scale employer uses an AI hiring tool to efficiently produce lists of qualified applicants for internal job postings. The company uses this tool for many years before it is discovered that a flaw in the algorithm resulted in a specific class of people being graded less favourably and recommended for promotion less often as a result. The intention won’t matter if the consequence is significant discrimination.
Additionally, employers should inquire about the privacy of data provided to any AI hiring tool.
What happens to all the data, including identifying personal information from applicants, that gets uploaded to the system? Does that data stay private or is it used to further train the AI hiring tool to be more effective for any organization it is used by?
These are important questions to ask before adopting AI into the hiring process.
So, what can an employer do to protect their organization in the long run?
The first step is to implement a robust AI policy that can inform organizational decisions about AI. There will always be some risk of unintended consequences but if there is thoughtful intention in the process, you will be much less likely to rush past those key considerations when assessing the implementation of new AI into your hiring process.
Matt Chapman is an employment, labour and contracts lawyer at SpringLaw, whose practice encompasses all aspects of employment and human rights law. He works with both employer and employee clients to find a smooth and positive solution or resolution to workplace legal matters.