A rejection can arrive seconds after submitting an application, with no indication whether a recruiter reviewed the resume or a scoring algorithm filtered it out before any human saw it. Resume ranking software, recorded interview analysis, online assessments, and automated screening questions can all determine who advances in a hiring process, often without the applicant ever knowing a machine made the call.
AI hiring discrimination is difficult to recognize precisely because the decision may be invisible. A computer-generated rejection isn’t automatically unlawful, but automated tools can repeat patterns that disadvantage people because of race, sex, pregnancy, age, disability, or another protected characteristic, and the applicant may have no way to see it happening.
At Phillips & Associates, PLLC, we represent workers in employment discrimination, pregnancy discrimination, sexual harassment, and retaliation. Our discrimination attorney in New York represents workers only, and we offer a no-fee arrangement, meaning we only collect a fee if compensation is secured.
How Automated Hiring Tools Can Discriminate
Automated tools create discrimination when they rely on data, scoring criteria, or patterns that reflect past inequities rather than a person’s actual ability to do the job. An Automated Employment Decision Tool is a computational process that produces a score, classification, or recommendation that substantially assists or replaces a human employment decision.
A resume filter may favor applicants whose work histories resemble prior hires, even when prior hiring patterns excluded qualified women, older workers, or racial minorities. A tool that treats employment gaps as a negative signal can also disadvantage applicants who took leave for pregnancy, caregiving, disability, or medical treatment. The filter doesn’t need to mention any protected category to produce a discriminatory result.
Video interview systems raise different concerns. Software that analyzes facial expressions, voice patterns, eye contact, or speech can be unreliable for applicants with disabilities, candidates whose communication styles differ from the system’s assumptions, or anyone who needs an accommodation during the process.
AI hiring discrimination in New York may also involve disparate impact, a legal concept describing a neutral policy or practice that disproportionately harms members of a protected group. Disparate impact doesn’t require proof that an employer intended to discriminate, but an unfavorable automated result alone doesn’t establish that a legal violation occurred. That’s why the details of how the tool was used, and what the employer knew, matter.
What NYC Local Law 144 Requires of Employers
NYC Local Law 144 regulates certain automated hiring and promotion tools used for positions in New York City. The Department of Consumer and Worker Protection administers the law and accepts complaints involving missing bias audits, missing public audit summaries, or missing candidate notices. Enforcement began on July 5, 2023. Penalties reach up to $500 for a first violation and between $500 and $1,500 for each subsequent violation, with every day of noncompliance treated as a separate violation.
A covered employer or employment agency must complete a bias audit no more than one year before using the tool and must repeat that audit annually. A bias audit evaluates whether selection rates differ among demographic groups, typically using an impact ratio that compares one group’s selection rate with another’s.
Covered tool requirements include:
- Annual bias audit: The tool must be assessed before use and at least annually thereafter.
- Public audit summary: A summary of the most recent audit must be publicly available.
- Candidate notice: Employers and employment agencies must provide the required notice at least 10 business days before using a covered automated employment decision tool, subject to the law's applicable requirements.
A missing notice or audit summary can support a complaint to the Department of Consumer and Worker Protection, but it doesn’t automatically create a private discrimination claim or prove that a particular applicant was rejected because of a protected characteristic. Local Law 144 also applies only to covered tools used for New York City hiring or promotion decisions.
Other Laws That May Protect Applicants Statewide
Discrimination protections don’t begin and end with Local Law 144. Depending on the job location, employer, and facts of the decision, an applicant may have protections under the New York City Human Rights Law, the New York State Human Rights Law, Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), or the Age Discrimination in Employment Act.
The ADA prohibits certain disability discrimination and can require a reasonable accommodation, a change that enables a qualified person to participate in the application process or perform a job. When an automated test creates a disability-related barrier, an accessible alternative assessment, extra time, or another modification may be legally required.
Employers can’t avoid responsibility simply because a technology vendor built or operated the screening system. The employer still makes or relies on an employment decision, and the relevant facts include what the employer knew about the tool, how it used the output, whether humans could override the result, and whether accommodation requests were handled appropriately.
Evidence to Keep If You Believe an AI Hiring Tool May Have Affected You
Some hiring systems are clearly disclosed; others operate in the background. A fast rejection isn’t proof of discrimination, but when it follows an automated assessment or an unexplained screening step, the details are worth preserving.
Records worth saving include:
- Job posting: Save the complete posting, stated qualifications, pay information, and application deadline.
- Application materials: Keep the resume, cover letter, responses, and any work samples submitted.
- Assessment information: Screenshot instructions, scores, video interview prompts, notices, and any technical error messages.
- Employer communications: Preserve rejection emails, recruiter messages, interview invitations, and any explanation for the decision.
- Accommodation records: Keep requests for changes to the process and every response received.
- Comparable information: Record known facts showing that similarly qualified applicants received different treatment.
What to Do After Suspecting AI Hiring Discrimination
Start by building a clear timeline. Note when you applied, when you received each message, whether a test or recorded interview was required, what the employer disclosed about automated screening, and when you requested an accommodation if one was needed.
Next, identify the specific concern. The issue may involve a disability-related assessment barrier, a pregnancy-related employment gap, an age-related screening pattern, inconsistent treatment based on race or sex, or a tool that applied criteria unrelated to the job. Those details help distinguish a potential compliance problem from a potential discrimination claim, and they matter when deciding where to report and how.
Reporting options vary. A Local Law 144 concern may be reported to the Department of Consumer and Worker Protection, while discrimination claims may involve the New York State Division of Human Rights, the NYC Commission on Human Rights, the Equal Employment Opportunity Commission, or a private legal claim where appropriate. Filing deadlines and available remedies depend on the law, agency, and location, so don’t wait until records disappear or a deadline passes.
An Algorithm Isn’t Beyond Review
AI hiring discrimination isn’t legally untouchable simply because software contributed to the decision. A meaningful assessment requires evidence connecting the automated process, the hiring outcome, and a protected characteristic or accommodation issue, but that evidence can exist, and it can be pursued.
We help workers evaluate discrimination, pregnancy discrimination, retaliation, and related workplace concerns with the care these matters require. If an automated hiring process may have cost you an opportunity, our workplace discrimination lawyer in New York can review the circumstances. Reach our team at (866) 229-9441. We offer free consultations.