Litigation claims are on the rise alleging bias in hiring practices as a result of employers' use of artificial intelligence (AI). These cases provide a lens through which we can better understand the potential biases of AI programs—and also how employers can harness AI technology while still protecting themselves from potential liability.

Employers increasingly use AI in the workplace to assist with their human resources decisions, including recruitment, hiring, training and retention, as well as assessing employee productivity and performance. There are readily available AI tools that scan resumes, sort candidates based on a set of pre-defined requirements, and evaluate candidates based on their facial expressions and speech patterns in video interviews. Where a job candidate was previously guaranteed that their application would be reviewed by a human, or a current employee could count on promotion decisions or training from their human counterparts, they may now be subject to a machine-led evaluation.