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June 2020

Is A. I. Biased?

Long gone are the days where the terms “A.I.” or “Artificial Intelligence” seem like terms from the far future.  The future is here.  A.I. is being used in everything from the practice of law to medicine and the education of today’s children.  Employers are even using it in order to determine who to hire into their companies.  

At  a past ABA Conference, there was actually a great panel discussion on A.I. in the workplace.  Sure, arguably, its usage may make hiring more efficient, but is this usage biased?  Is the A.I. biased?  After all, something that is human-made is only as good as the humans who originally made it.  Usage suggests that such tools have created situations that create undesirable results based upon classifications, such as race, sex, and more.  In this author’s opinion, this does not lead to a problem, but rather a “challenge” that we should be addressing.  

How Does A.I. Work?

    A.I. has been defined differently by different people and organizations throughout the years.  However, loosely speaking, a computer is making decisions that a human would have otherwise made.  This capability primarily depends on (1) training, (2) data sets, and (3) repetition.  A Medium article by Sherise Tan sets forth a good explanation.  On a rudimentary level, we do this all the time as end-consumers.  Did you like that song that Pandora just played?  You give it a “thumbs up.”  Hate it?  Thumbs down.  Amazon?  Facebook ads?  Same story.  The programs learn from your choices and behavior.  

Hire Me, Please

In the corporate hiring context, A.I. can be and has been used in multiple ways.  One of which is filtering candidates for interviews.  A popular method is scanning through résumés and application materials.  In fact, this is what ZipRecruiter claims to do.  However, things can sometimes backfire.  Can it infer sexual orientation and religious beliefs due to social media information that may be obtainable?  Perhaps there are biases created against schools that one may have attended?  

Here’s My Résumé

At one point, Amazon created an A.I.-based program that was meant to review résumés in order to find “top talent.”  In fact, it was similar to using Amazon’s website—candidates were given scores ranging from one to five stars.  However, it turned out that the system was arguably biased against women.  The program was trained to observe patterns in résumés that were previously submitted in the prior ten years.  Of course, as a primarily technology company, Amazon has done what a lot of similar companies have done in the past couple decades—hiring more men than women.  So, of course, somebody named “John” may automatically get a leg up over somebody named “Linda.”  

This issue is not just Amazon’s alone, however.  Kriti Sharma has a great Ted Talk on this same exact topic.  If a hiring manager is looking for the “next tech leader of the company,” the program will pick up on the fact that the hiring manger is “hiring men.”  According to Sharma, it is a simply a short leap from there from which the program understands that men may make better programmers than women.  The original bias is reinforced.  

They’re Interviewing Me!

Another example is actually using the technology in the interview process.  The Wall Street Journal has a great video describing an example of this.  At least one company called HireVue has already created software that uses what an interviewee says via video to analyze a multitude of things, including the interviewee’s micro-expressions and enthusiasm about the job.  Unilever and Hilton are at least two companies that are definitely capitalizing on it.  HireVue’s CEO, Kevin Parker, states that such technology is supposed to remove the human bias from the process.  However, some are referring to this as “digital snake oil” and a “license to discriminate.”  What makes a perfect employee anyways?  Does somebody’s accent detract from their “enthusiasm” about the job?  If English is not their native language, does that detract?  

What Does the Law Say?

Has A.I. has become “above the law” because a machine is making the decision as opposed to a human?  As most know, employers cannot discriminate on the basis of race, color, national origin, or religion.  Nor can they—for example—generally discriminate based upon age or disability.  Although not much has been yet stated regarding this new technology on the federal level, it is always prudent to prevent issues down the road.  Therefore, if advising companies who create, implement, or seek to use such or similar A.I. technologies as already discussed, then one should make sure that the programs have been thoroughly vetted and tested before usage.  Otherwise, such companies may have undesired lawsuits on their hands.  

However, it may very well be such lawsuits that encourage lawmakers to pay attention to what is happening.  As of now, although there is some movement on laws affecting A.I. in general, only Illinois seems to have taken it to the workplace.  It has already approved legislation that seeks to toss in some transparency—Public Act 101-0260—otherwise known as the Artificial Intelligence Video Interview Act.  It seeks protect the interviewees.  The language is not extensive and consists of the following:

Section 5. Disclosure of the use of artificial intelligence analysis. An employer that asks applicants to record video interviews and uses an artificial intelligence analysis of the applicant-submitted videos shall do all of the following when considering applicants for positions based in Illinois before asking applicants to submit video interviews:

(1) Notify each applicant before the interview that artificial intelligence may be used to analyze the applicant's video interview and consider the applicant's fitness for the position. 

(2) Provide each applicant with information before the interview explaining how the artificial intelligence works and what general types of characteristics it uses to  evaluate applicants.

(3) Obtain, before the interview, consent from the applicant to be evaluated by the artificial intelligence program as described in the information provided. 

An employer may not use artificial intelligence to evaluate applicants who have not consented to the use of artificial intelligence analysis.

Section 10. Sharing videos limited. An employer may not share applicant videos, except with persons whose expertise or technology is necessary in order to evaluate an applicant's fitness for a position.

Section 15. Destruction of videos. Upon request from the applicant, employers, within 30 days after receipt of the request, must delete an applicant's interviews and instruct any other persons who received copies of the applicant video interviews to also delete the videos, including all electronically generated backup copies. Any other such person shall comply with the employer's instructions.

Emoji claps for valid effort.  However, as is already apparent, there may be issues that are not cured or are raised with this new legislation. For instance, what exactly is “artificial intelligence”?  As was discussed before, there have been many definitions and iterations throughout the year in the scientific community itself; how has the law defined it?  Second, how does this “consent” occur from the interviewee?  Is it an adhesive contract or one that ends up being a non-descript paragraph within a Terms & Conditions of an application?  Third, is there any recourse for those who might receive negative reactions due to withholding consent?  These questions are just a start.  Although it is a valid effort from the Illinois legislature, questions still abound.  

For now, attorneys and companies alike should stay vigilant.  As with any technology, it can be used a shield or a sword.  Use it wisely.  

Silvia Mansoor

Koussan Hamood PLC

Detroit, MI

My Loved One Wants to Stay at Home, but I’m Not Sure They Should

Often a family will come into our office for a consultation faced with a very difficult dilemma: Mom or Dad, or both, are still living at home, but the kids are starting to notice some red flags. Dad is getting more forgetful, he looks like he’s lost some weight, his personal hygiene seems to have declined, he recently got lost while driving, he has unopened mail and overdue bills, his house is getting more and more cluttered, there’s expired food in the fridge, and his neighbors are reaching out to the family voicing their concerns. These occurrences are just a few of the many red flags that a loved one may not be safe living at home on their own any longer. Oh, and on top of all that, Dad thinks he’s fine at home, says he will never agree to move into an assisted living/care facility and wants to reside in his home for the rest of his life
no matter what

So, what do you do? What do you say? Where do you start? All very good questions with incomplete answers. We’ve seen this scenario play out in several different ways and, unfortunately, with varying degrees of success, depending on how you define “success.” The ideal scenario, of course, is that Dad leaves the house willingly, he understands he has limitations and knows that he needs to put his safety before his comfort, but that’s not how most of us are wired is it? For the majority of us, we spend our entire adult lives being independent, doing things on our own, taking care of ourselves, our kids, our spouses and heck we took care of our parents, why aren’t you taking care of me?! 

The ironic thing is the problems we run into most often in these situations aren’t necessarily caused by a mental deficiency such as dementia. More often it’s a personality trait or combination of Mom’s or Dad’s personality and a mild mental deficiency which cause them to stand pat. People are stubborn. It’s in our nature. I know what is best for me and, sure, I might take some input from the person who cuts my hair, but I’m definitely not going to listen to my kids, what do they know? Seriously, this is what we see all the time. I tell clients this indisputable fact over and over again: kids listen to their parents better than parents listen to their kids

If you’re in this situation now or can see it unfolding down the road, you’re probably wondering where this is headed. What’s the resolution? If Mom/Dad simply cannot live independently at home any longer, what are our options?  It can be a very trying experience on both the parent(s) and the kids. What I always try to remind our clients is this: as long as you are trying your best to help Mom/Dad and are making decisions with their best interests at heart, then you have no reason to second guess yourself or feel guilty about whatever path you choose to take. Also, we are here to help. And I don’t just mean “we” as in our office, but, of course, yes we and other attorneys who specialize in this area are here to walk with you through the process and we have connections and resources to other professionals who can help too. You are not alone in this endeavor.

There are many ways we’ve seen these scenarios play out in our practice, but please take note- the optimal solution is almost always one where the family is still in control of Mom’s or Dad’s care. You never want to find yourself in court with a judge appointing a stranger to be in charge of where your Mom or Dad lives and their day-to-day needs. This outcome should only be reserved for those people who are unable to make their own decisions and do not have a capable and willing loved one to step in and act on their behalf, but all too often, for one reason or another, we see willing family members having to step aside while someone else takes over decision making for Mom or Dad.

I will discuss some the resolutions to this dilemma in more detail the next time around including information on resources that can help, what factors to consider and your next step. I will also dive further into how families can plan ahead for these situations and perhaps, hopefully, even prevent these issues before they arise. As always, if you find yourself in this situation with a loved one right now or if you have additional questions please feel free to reach out to our office.  We are here to help.

Until next time,


Ryan Reck

Woods Law Office PLLC

Shelby Township, MI