On Feb. 11, Outten & Golden LLP partners Jenny R. Yang and Mikael Rojas presented a webinar on algorithmic discrimination in employment, exploring how automated hiring and evaluation tools can quietly shape who gets jobs, promotions, and opportunities.
In the session for members of the Metropolitan Washington Employment Lawyers Association (MWELA), Jenny explained how many hiring systems rely on historical data and past decisions. The result, she warned, is technology that can scale bias rather than eliminate it, sometimes producing “a system that’s accurate at predicting the wrong thing.” She emphasized that disparate impact—a key piece of civil rights enforcement that examines how seemingly neutral practices cause harm according to protected characteristics—remains critical to identifying and addressing these harms, particularly when discrimination is embedded in opaque systems.
Mikael focused on how these issues are emerging in litigation. He reviewed recent cases challenging automated screening tools, targeted advertising, and applicant‑tracking systems, and discussed the difficulty of uncovering discrimination hidden inside what he described as “black box” technologies. He identified the use of external data and testers as potential solutions. Despite the challenges, claims have moved forward through careful pleading that points to automated decision‑making, he said.
The discussion also explored how lawyers are using tools beyond traditional discrimination law—including privacy and consumer‑protection statutes—to challenge AI‑driven decision‑making. They also discussed state‑level developments that may drive accountability amid a pullback in federal enforcement under the current presidential administration.
Together, Jenny and Mikael underscored a central takeaway: as employers increasingly rely on automated systems, ensuring that new technologies comply with longstanding civil rights laws is becoming one of the defining challenges for employment lawyers today.
By Jon Steingart, Senior Content Strategist at Outten & Golden LLP.
