Compliance Stuff

We’ve all heard the horror stories. A job seeker spends hours tailoring his resume, finally hits “submit,” and within seconds receives a rejection email in his inbox. Clearly, no human could have actually reviewed the resume. The applicant wasn’t rejected by a person; he was rejected by a pattern-matching algorithm. The “ No Robot Bosses Act ” could curtail these scenarios. The bill has bipartisan support in Congress, having been co-sponsored by Democrats Suzanne Bonamici of Oregon and Christopher Deluzio of Pennsylvania, and the Republican Delegate from Guam, James Moylan. The core premise of the proposed No Robot Bosses Act?  Employers would be prohibited from relying exclusively on automated decision systems to make employment-related decisions , including whether to hire or fire. Under the proposed law, an “automated decision system” is defined broadly as follows: a system, software, or process that . . . uses computation, in whole or in part, to determine outcomes, make or aid...

Among the first questions I ask when investigating a lawsuit accusing my client of discriminatory conduct is, “Who made the decision?” The reasons are simple. First, an adverse employment action – like termination, demotion, or failure to hire – doesn’t just happen. A person makes the decision. Second, claims of employment discrimination turn on that person’s motivations. Did the person take the adverse action because of the plaintiff’s protected characteristic ? Did that characteristic play a part in the decision? Winning or losing often comes down to how well the decisionmaker can explain the reasons for an adverse action and show that they were not a pretext for discrimination. When I have been lucky enough to be involved in the decision-making process, I counsel the employer on the importance of having a decisionmaker who will take ownership and, if necessary, be able to explain it credibly and convincingly to a jury. It’s one thing for several managers to agree that an employee ne...