Real Versus Robot: Biometric Vetting in Hiring

Our recent post (Real Versus Robot) focused on the risks inherent in the virtual world of accidentally hiring a bot and provided some tips for ensuring bad AI-actors don't end up working inside an organization. Today's WSJ piece about how AI is forcing companies to return to in person interviews is another example of a practical approach to ensuring you've hired a human. That article discusses another suggestion for employers: using Clear (the airport security service) or other biometric devices to verify an employment applicant's identity.

While resorting to such technological advances are appealing, they pose legal risks in the hiring process that could increase rather than mitigate risk for employers. Federal and state law uniformly ban discrimination in hiring. To give effect to these laws, employers are generally prohibited from imposing pre-employment barriers that could lead to hiring decisions based on immutable personal characteristics (such as , for example, race and age, among many others) that is manifestly not legal.  Many employers go to great pains to eliminate any such information from the hiring process in order to level the employment playing field. But requiring a job applicant to apply through a service that not only records biometric data, but uses photographs, demographics and other information needed to verify identity, creates a very real risk that this information will be disclosed to (and possibly used by) hiring managers.

Because of these risks, nearly all employers are required to make conditional offers of employment before moving forward with other information gathering in the hiring process. These conditional offers acknowledge the individual has the basic skills, education, experience, licenses or other credentials to fill a position before the employer discovers other information about the applicant that might reveal data the employer otherwise is prohibited from using for a hiring decision. Needless to say these rules can be complex, especially for multi-jurisdictional employers who are functioning not only in a distributed environment, but a largely virtual one.

The net of all of this is that it is important that employers carefully considers any tools the employer uses in the hiring process - including information necessary to rule out inadvertently bringing a bot on board. As always, any technology employers use in the hiring process should be vetted not only for competence, but legal compliance as well.