Behavioral Design Algorithms Show Promise and Peril in Hiring

A new technology has the potential to both reduce and exacerbate illegal bias in hiring.

The New York Times has reported that two start-up hiring platforms, Applied and Pymetrics, have created algorithms using  artificial intelligence and neuroscience games that can level the playing field for gender, ethnic and socioeconomic representation.

Age discrimination also is illegal but it was not mentioned. This despite considerable evidence  showing that employers currently are systematically discriminating against older workers by using computer software to screen out their resumes and divert them to a digital trash can.  Research shows that older women are the most severely affected by hiring discrimination.

Spokespersons for Applied and Pymetrics said behavioral design algorithms  are capable of analyzing hiring factors that are more predictive of performance and less biased than traditional resume screening tools. The algorithms are tweaked until men and women and people of different ethnic backgrounds get similar scores to qualify for hire. A spokesperson for Applied cited a large test in which over half of the people that were hired would not have been were it not for the platform. A  Pymetrics spokesperson said the company has been highly successful in improving gender, ethnic and socioeconomic representation for clients like Accenture and Unilever.

The behavioral design companies say the technology is equally capable, in the wrong hands, of magnifying hiring bias.

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Federal Courts Criticized for Dismissive Treatment of Employment Discrimination Victims

There is overwhelming evidence that federal courts for years have ignored and marginalized plaintiffs in employment discrimination cases.

Judge Richard A. Posner, one of the nation’s leading appellate judges, recently resigned from the 7th Circuit U.S. Court of Appeals citing his disgust for the dismissive treatment that his fellow jurists accorded to pro se litigants. The vast majority of pro se litigants are victims of a justice system that is too expensive for all but a privileged few. Most Americans cannot afford to hire an attorney and either must proceed on their own or passively suffer gross injustice. Posner told abovethelaw.com that pro se litigants “deserve a better shake.”

Posner says judges divert the cases of pro se litigants to staff attorneys and then routinely dismiss the case after the employer files a motion for summary judgment.

In addition to Posner, attorneys for the Center for the Study of Law and Religion at Emory University School of Law are questioning the high rate of dismissals in lawsuits involving employment discrimination. They filed an amicus brief last month that points to research showing that from 1979 to 2006, the plaintiff win-rate in federal employment cases was only 15%, compared to the 51% success for plaintiffs (a.k.a. businesses) in the non-employment context.

The win rate for victims of employment discrimination was 15% compared to 51% for plaintiffs in the non-employment context.

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U.S. Chamber of Commerce No “Friend of the Court”

Nice to see someone calling out the U.S. Chamber of Commerce, which frequently inserts itself into national litigation as a “friend of the court.”

In reality, the Chamber is almost always an advocate for a dues paying corporate member and espouses a position that is anti-employee and anti-consumer. In 2014, I argued the Chamber was a federal court lobbyist.

According to Reuters, the firm of Lieff Cabraser Heimann & Bernstein has opposed  the Chamber’s request to file an amicus or “friend of the court” brief in a case involving a challenge by Direct TV to the certification of a class action by the 11th Circuit Court of Appeals in Atlanta.  Lieff’s brief argues the Chamber, the Chamber’s lawyers, DirectTV and Direct TV’s lawyers are bound so closely together that even under a liberal reading of the definition of an amicus curiae, the Chamber cannot legitimately be regarded as a friend of the court.

“The Chamber is not merely a friend of the party, but essentially the party itself.” – Lieff Cabraser Heimann & Bernstein

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Support for American Workers is Hard to Find

Who is standing up for the rights of American workers?

GOP President Donald Trump and the GOP-led U.S. Congress seem to be determined to eliminate worker rights rather than to expand them. Trump has reversed a bevy of pro-labor measures that former Democratic President Barack Obama enacted on his own without Congressional backing. Meanwhile, workers continue to seethe about mostly Democratic trade policies that sent American jobs to other countries.

Labor unions are barely hanging on, despite the fact that unions pioneered many of the employment benefits that workers take for granted today. In 2016, the union rate for private sector workers was 6.4 percent – down from 20.1 percent in 1983.  Organized labor is currently battling a potentially crippling effort by Trump and the GOP to prevent unions from requiring nonmembers to pay representation fees.

It may be an understatement to say that advocacy of worker rights  does not appear to be high on the agendas of the Equal Employment Opportunity Commission and US. Department of Labor.

Under the Democratic administration of President Barack Obama,  the EEOC shifted its focus away from filing lawsuits and prosecuting employers who engaged in illegal discrimination. Instead, the EEOC is focused on providing free dispute resolution services to these very same employers. Mediation is often a lousy deal for discrimination victims, who walk away with a pittance to compensate for the loss of a decent job, but it’s always a great deal for employers, who avoid potentially catastrophic fees and damages stemming from a lawsuit.  Also, mediation is completely secret so other potential litigants are kept in the dark.  Meanwhile, the EEOC has for years ignored one of the most pressing civil rights issues of our day – blatant and epidemic age discrimination in hiring that is particularly devastating to older women, who suffer twice the poverty rate of men in their old age.  The EEOC received more than 20,000 age discrimination complaints in 2016; it  filed only TWO lawsuits with “age discrimination claims.” [Read more…]