Amazon Hiring A.I. Learns Gender Discrimination Against Women

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Is automation the answer to fighting gender discrimination against women? Some big tech companies seem to think so. But after Amazon’s experimental hiring A.I. learned to favor men over women, the question is whether automation will stop discrimination or make it worse.

In this blog post, I will discuss recent reports that tech-giant Amazon’s experimental hiring tool was abandoned because it had learned gender discrimination against women. I will explain how Title VII protects against gender discrimination in hiring, and discuss what that could mean in a world where initial hiring screening is done through automation.

A.I. Has Become a Common Part of the Hiring Process

Some of the country’s largest employers have been turning to computers to help them speed up the hiring process. Goldman Sachs created a resume analysis tool to match candidates with different divisions within the company. Microsoft offers employers an algorithm to rank candidates based on job postings uploaded to LinkedIn, the company’s online professional network. Others use automated systems to screen out unqualified individuals from the pool of applicants. One report by CareerBuilder suggests that as of 2017, up to 55% of U.S. human resource managers planned to incorporate artificial intelligence (A.I.) into their hiring processes within the next 5 years.

For some employers, A.I. helps promote diversity in hiring. Automated recruiting networks at HireVue, for example, helped companies look beyond Ivy League schools to find other highly-qualified candidates from other, less sought-after schools. But others see the technology as one step in a larger process. John Jersin, vice president of LinkedIn Talent Solutions, says,

“I certainly would not trust any AI system today to make a hiring decision on its own. . . . The technology is just not ready yet.”

Resume Screening A.I. Learns Gender Discrimination Against Women

Those reservations seemed justified after Reuters reported that Amazon’s experimental hiring A.I. had been discontinued because, among other things, it had learned gender discrimination against women. Amazon began working on the project in 2014. Its machine-learning specialists were trying to mechanize recruitment searches by creating a computer program that could identify top talent. The tool would scan each applicant’s resume, and then rate it from one to five stars.

But within a year, Amazon realized it had a problem. The system had learned gender discrimination against women. Like most computer learning, the program was designed to observe patterns in successful resumes submitted to the company over time. Those resumes came with biases of their own.

Amazon’s workforce is 60% male. Across the industry, in technical roles, like software developers, male employees outnumber female employees 3 to 1. Because the tech industry has a problem with gender disparity, so did the successful resumes.

Over time, the program learned that the skills needed to do the job — like the ability to write code — appeared in almost every resume. Instead, the technology found distinction in the way applicants described themselves. It came to favor masculine language, such as “executed” and “captured”. It also reportedly penalized resumes that included the word “women’s” (such as “women’s chess club captain”) and downgraded two all-women’s colleges.

Title VII Says Gender Discrimination Against Women is Illegal, Even by Computers

Favoring, or downgrading, an applicant based on gender is illegal under Title VII of the federal Civil Rights Act. The law prohibits employers from making hiring decisions based on a person’s sex or gender (including how well he or she complies with gender stereotypes). When gender discrimination against women becomes a part of the program making hiring decisions, a Title VII violation seems likely.

The law doesn’t require a potential employee suing for gender discrimination to prove the person making the hiring decision intended for the discrimination to happen. Some cases have been won simply on a showing of “disparate impact” — that factors other than gender negatively affected one gender more than another. Even if the machine-learning team didn’t mean for their hiring A.I. to learn gender discrimination against women, the effect of screening out female applicants could be enough for a court to find the company violated Title VII.

Weeding Out Gender Discrimination from Automated Hiring Decisions

Fortunately, Amazon recognized the problems with an A.I. that weighs gender in its hiring protocol. At first, the team edited the programs to neutralize the effect of those particular forms of gender discrimination against women. But advocates warned there was no way to know if the program was developing other discriminatory ways of sorting candidates.

Ultimately, Amazon disbanded the project in 2017. The company said the program was never used by recruiters to evaluate candidates, and that it had other problems that kept it from going to market. However, given the trends in hiring and automation, it is only a matter of time before Amazon, Google, or some other technology company releases a hiring A.I. that will automate the hiring process and could potentially hard-code gender discrimination into future hiring decisions.

Gender discrimination against women in hiring happens all across the country, in nearly every industry. Whether it is because of automation or old-fashioned biases, you have a right to be considered based on your qualifications, not your sex. If you believe you have been passed over for employment due to your gender, the employment discrimination attorneys at Eisenberg & Baum, LLP, can help. We will review your situation and help you plan a strategy that preserves all of your claims and protects your rights. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Could the Definition of ‘Sex’ Remove Civil Rights Protection for Trans* Employees?

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The Trump Administration recently revealed plans to change the way parts of the government define sex to be based on a person’s DNA. That could spell trouble civil rights protection for Trans* employees, students, and others seeking protection based on federal gender discrimination laws. But can the Department of Health and Human Services really change anything? Find out what transgender and transsexual Americans need to know about this new proposal.

In this blog post, I will review reports that the Department of Health and Human Services is attempting to set a new definition of sex that could strip civil rights protection for Trans* employees and students from Title IX. I will explain how the law works and whether the Trump Administration has the authority to make the change.

Department of Health and Human Services Considers Defining Sex as Genetic

On October 21, 2018, the New York Times broke the news that the Trump Administration — specifically the Department of Health and Human Services (DHHS) — is considering changing the legal definition of sex under Title IX. If DHHS goes through with the change, the agency would adopt a policy that says:

“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth. . . . The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

The memo is reported to have urged similar action by all the “Big Four” agencies involved in the enforcement of federal civil rights laws:

  • Department of Health and Human Services
  • Department of Education
  • Department of Justice
  • Department of Labor

Some of these federal agencies have already taken steps to roll back Trans* protective policies put in place during the Obama Administration. However, none of those efforts go as far as DHHS’s proposed redefinition of sex.

The Times described this narrow definition as “the most drastic move yet in a governmentwide effort to roll back recognition and protections of transgender people under federal civil rights law.” It said the new definition would “essentially eradicate” federal civil rights protections for Trans* Americans. But that could overstate the effect of the policy on the courts.

Title IX Protects Against Gender Discrimination in Schools

Title IX of the Education Amendments of 1972 is the primary federal civil rights protection for Trans* Americans in schools. The law says gender discrimination is illegal in any educational program or activity that receives federal funding. That includes sex-based discrimination in:

  • Enrollment and Admissions
  • Recruiting
  • Financial aid
  • Student services
  • Discipline
  • Assignments
  • Grading
  • Extracurricular activities and sports
  • Recreation
  • Housing

Title IX also applies to certain employees of schools and other educational programs, particularly where the employee is also a student.

Schools that receive federal funds are legally required to respond to and prevent gender discrimination and sexual harassment that occur within their programs. When they don’t, it can be up to the Department of Health and Human Services and the Department of Education’s Office of Civil Rights to enforce the law. Students and employees can file complaints of gender discrimination with these agencies based on their inequitable treatment of students, teachers, and others within the school setting.

Just like other federal civil rights laws, Title IX does not specifically define “sex” or “gender”. DHHS says the proposed policy abides by a court order by Judge Reed O’Connor from the Federal District Court in Fort Worth, Texas. In 2016, Judge O’Connor held “Congress did not understand ‘sex’ to include ‘gender identity’.” However, other courts have regularly found otherwise. Federal courts across the country have found federal law includes civil rights protection for Trans* individuals because treating them differently is necessarily based on gender non-conformity and sexual stereotypes.

Can the Trump Administration Change Title IX?

LGBT advocates and other Trans* supporters are upset by the proposed policy change. Within hours of the Times report, social media was filled with the hashtag #WontBeErased. Rallies took place in New York and Washington, where Trans* Americans and their supporters vocally and visibly opposed the policy.

But whether DHHS adopts the policy or not, it will not change the language Title IX or the cases interpreting it. As a federal statute, the law can only be modified by Congress, not the Trump Administration. Instead, the DHHS policy would determine which types of cases the government agency will choose to pursue when it receives complaints. In addition, any changes to a government agency’s policy require prior notice of the proposed changes and an opportunity for comment. This period will allow LGBT advocates to voice their opposition, and possibly stop the policy or modify it to include some federal civil rights protection for Trans* individuals.

The Bottom Line for Civil Rights Protection for Trans* Employees and Students

Even if the policy is adopted as proposed, it will not change federal law or erase the cases defining sex and gender discrimination to include protection for transgender and transsexual Americans. Trans* employees and students will still be able to pursue Title IX claims against educational institutions engaging in gender discrimination. However, they will likely have to do so without the help of DHHS.

At Eisenberg & Baum, we understand the importance of federal civil rights protection for Trans* Americans. Our employment discrimination attorneys, help transgender, transsexual, and gender-nonconforming workers and students protect their rights under Title IX, Title VII, and other civil rights laws. We are committed to making our office a safe space for you and your loved ones. If you feel like your employer or school is using your gender identity or expression against you, contact us. We’ll meet with you and help create a strategy that protects you against gender discrimination.

Asian-American Students Sue Harvard Over Affirmative Action Policies

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Competition for admission into America’s Ivy League universities has never been tighter. Students compete on grades, extracurricular activities, volunteer work, and awards. Still less than 5% of applicants get admitted to Harvard College. Now a lawsuit says the the school’s affirmative action policies make Asian-American students the victims of racial discrimination.

In this blog post, I will review a lawsuit filed by Asian-American students rejected by Harvard University. The complaint claims the university’s Affirmative Action policies create racial discrimination against minority students. I will review past Affirmative Action cases and explain when a college may consider a student’s race in deciding admissions.

Lawsuit Says Affirmative Action Policies Create Racial Discrimination in Enrollment

A federal district court in Boston, Massachusetts, has been asked to rule that Harvard’s Affirmative Action policies create racial discrimination in enrollment. The plaintiffs — all Asian-Americans represented by Students for Fair Admissions — say their applications were unfairly rejected from the Ivy League school based on their race. They say Harvard has set an illegal restrictive quota for the number of Asian-American students accepted to the university every year.

According to the lawsuit Harvard University’s Asian-American admissions has been stuck at 18% even though the national population has changed over time. In contrast, Asian-Americans make up 34.8% of the University of California, Los Angeles (UCLA) student population, 32.4% at Berkeley, and 42.5% at Caltech. However, part of this disparity may relate to the higher Asian-American population in California.

Is Affirmative Action Racial Discrimination?

Affirmative action has been through the courts before. Colleges and universities have long considered an applicant’s race as part of admissions, generally to promote diversity on campus. But isn’t treating applicants differently based on race illegal racial discrimination?

In 1978, in Regents of the University of California v Bakke, the U.S. Supreme Court said using racial quotas was illegal and violated the Equal Protection Clause. But that decision did allow colleges and universities to use race as one factor among many if done to achieve diversity.

In 2003, the U.S. Supreme Court considered two more affirmative action cases involving the University of Michigan and its law school. There the court again said using race as part of the admissions process was allowed, but the university’s point-based system (which awarded up to 20 points out of a total 150 points for an applicant’s race) went too far. The Court said the overly mechanized system created racial discrimination in the application process. Notice, these decisions are based on Equal Protection under the Constitution, not federal civil rights laws.

Most federal Affirmative Action lawsuits are brought by members of the racial majority. White applicants will argue that they were passed over in favor of minority candidates. In fact, Students for Fair Admissions have represented those white applicants before against the University of North Carolina at Chapel Hill and the University of Texas at Austin.

Asian-Americans Split Over Claims of Racial Discrimination

This time, the plaintiffs are themselves a racial minority: Asian-Americans. The students say that Harvard (and other elite colleges not named as defendants) holds Asian-Americans to a higher standard than other applicants. They accuse the school of using racial balancing in their admissions process, which they say violates Equal Protection.

But not all Asian-Americans feel the same way. Some believe Harvard’s admissions practice and its diversity has enriched their educational experience. Emily Choi, who will be a junior with a history and literature concentration at Harvard this fall, told the New York Times:

“I firmly believe in affirmative action. . . . The diversity at Harvard has been key to my learning, and I think that if there weren’t so many people of different backgrounds, I wouldn’t be forced to think about things in new ways.”

Does Harvard’s Affirmative Action Policy Pass the Many Factors Test?

The question for the federal district court is whether Harvard’s Affirmative Action policy lives up to the standard set in earlier Supreme Court cases. Harvard’s attorneys originally objected to releasing the university’s admissions criteria out of fear that incoming applicants may use it to game the system. But now, many of the details of Harvard’s Affirmative Action policy have come to light. The university reports that it considers an applicant’s:

  • Grades
  • Test scores
  • Intended major
  • Personality
  • Race and ethnicity
  • Geographic region (rural vs urban)
  • Parents’ occupations
  • Extracurricular activities

In addition, the team considering these applications can give “tips” (admission advantages) to some applicants who are:

  • Racial and ethnic minorities
  • The children of Harvard or Radcliffe alumni (legacy)
  • Relatives of a Harvard donor
  • The children of staff or faculty
  • Athletes

Applicants on the “dean’s interest list” may have particular clout; and the “Z-list” helps students who have weaker academic scores. In testimony taken recently, Judge Allison D. Burroughs seemed to be particularly interested in whether these “tips” and lists could create inadvertent racial discrimination based on the unconscious bias of the evaluators.

Over the years, colleges and universities have seen federal courts limit their ability to use Affirmative Action policies without raising racial discrimination concerns under the Equal Protection Clause of the 14th Amendment. Commentators are saying this Harvard case is set up to take the matter back to the U.S. Supreme Court. Whether Harvard’s claims that the policy promotes diversity will stand up to constitutional scrutiny remains to be seen.

At Eisenberg & Baum, LLP, our employment discrimination attorneys help employees facing gender discrimination on the job, and on campus. If you are the down side of Affirmative Action, we can help you review your options and protect your rights. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.