Using AI in the Hiring Process: Navigating Potential Bias
By: Michelle QuinnCo-authored by Articled Student, Ajay Gill
Some businesses are starting to use AI to assist them in the hiring process, and this trend may continue to gain momentum as the capabilities of AI increase. For employers using AI in the hiring process, it is important to be careful about the risk of bias associated with using AI.
Using AI systems – Risk of Bias
From an employment law perspective, there is risk of discrimination or bias in the hiring process based on human decision-making. That risk will continue to exist as AI is increasingly used in the hiring process since AI systems are (at least for now) created by humans and prone to exhibiting biased decision-making.
AI systems can be biased for two main reasons: biased training data and programming errors.
First, AI systems learn from data, and if the data used to train them doesn’t represent all groups of people equally, the system can make biased decisions. For example, if a facial recognition program is trained mostly on data of white people, it may struggle to recognize faces of people of color accurately, leading to inaccurate results.
Second, biases can also appear if the people who create the AI systems unintentionally or consciously program their own biases into the software. This can happen if certain factors, like income for example, are given too much weight in the AI algorithm’s decision-making process, unintentionally discriminating against people of a certain race or gender.
The use of AI in hiring can increase the risk of discrimination because these biases are often hidden and hard to detect due to the complexity of AI models.
While researchers are working to reduce AI bias, it’s still uncertain whether the problem will ever be fully eliminated. For now, employers should be cautious and apply human oversight when using AI in hiring to ensure a diverse pool of candidates.
Canadian Legislation
Canadian lawmakers are starting to introduce legislation responding to the growing use of AI in the hiring process. At the federal level, the proposed Artificial Intelligence and Data Act (“AIDA”), is presently under legislative review and will provide a national regulatory scheme for AI.
Ontario’s Working for Workers Four Act, 2024 (the “Act”) is the first legislation passed in Canada which directly addresses the use of AI in the employment sector. The Act specifically addresses artificial intelligence in the hiring process by amending the Ontario Employment Standards Act, 2000 to require employers to disclose the use of AI in the screening, assessment or selection process for applicants to a job position.
The Act received Royal Assent on March 21, 2024, and the amendments related to disclosing the use of AI by employers in the hiring process will come into effect on January 1, 2026.
We expect that other provinces, including British Columbia, will pass similar legislation in time.
In the absence of provincial legislation, BC employers using AI in the hiring process should remain alert to the possibility of bias in the AI system, and should seek to mitigate that risk with human oversight to ensure they are not discriminating against potential applicants.
If you would like more information about using AI in the hiring process, please contact any member of our Employment and Human Rights Group.
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In LaFleche v. NLFD Auto dba Prince George Ford (No. 2), 2022 BCHRT 88, the BC Human Rights Tribunal (the “Tribunal”) found that Ford discriminated against Mellissa LaFleche (“Ms. LaFleche”) on the grounds of sex and family status by dismissing her while she was on maternity leave. Ms. LaFleche had worked as a marketing manager for Ford for close to two years and, while she was on leave, Ford told her that she would not be returning to her managerial role – a role she had “built from scratch”. The Tribunal awarded Ms. LaFleche $12,000 for injury to dignity and $66,625 in lost wages and benefits.
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Parmar v. Tribe Management Inc., 2022 BCSC 1675 is the first civil court decision to tackle whether an unpaid leave of absence for noncompliance with an employer’s mandatory vaccination policy can be considered constructive dismissal. The issue before the Court was whether Tribe Management Inc.’s decision to place Ms. Parmar on an unpaid leave of absence was reasonable following the implementation of a mandatory vaccination policy given the circumstances of the COVID-19 pandemic at the time. Ms. Parmar refused to be vaccinated due to choice. She did not apply to her employer to be exempt from the mandatory vaccination policy based on medical or religious reasons. The BC Supreme Court found that it was not a constructive dismissal. Instead, it found that Ms. Parmar had repudiated the employment contract. As a result, the claim was dismissed, and Ms. Parmar was not entitled to any damages.
