Yes, Artificial Intelligence can be programmed to discriminate and violate the Age Discrimination Act. Early May 2022, the EEOC sued three companies that "allegedly" programmed their online recruitment software to automatically reject older applicants because of their age. I guess they didn’t know about the Artificial Intelligence and Algorithmic Initiative.
I’m sure you have heard of “disparate treatment” right? Well it is when there is intentional discrimination against older workers. However, the ADEA also prohibits practices that have the effect of harming older workers more than younger workers (known as “disparate impact”) unless the employer can show that it based the practice on reasonable factors other than age.
So before employers start configuring their systems to weed out potential candidates, they may want to confer with legal counsel (who specializes in employment law) before changing their hiring efforts that could adversely impact a protected class. You can read more about the lawsuit in the article below.
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