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Speaker 1: In a major blow to LGBTQ rights, on the last

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Speaker 1: day of the term, the Supreme Court's conservative majority rule

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Speaker 1: that a Christian graphic artist doesn't have to create wedding

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Speaker 1: websites for same sex couples, saying forcing Laurie Smith to

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Speaker 1: do so would violate her free speech rights. Transportation Secretary

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Speaker 1: Pete Buddha Judge told CNN that Smith appeared to have

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Speaker 1: gone into the wedding business to create a case for

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Speaker 1: the court.

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Speaker 2: In that sense, I think there's something in common between

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Speaker 2: this Supreme Court ruling and what we're seeing happening in

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Speaker 2: state legislatures across the country, which is kind of a

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Speaker 2: solution looking for a problem, in other words, sending these

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Speaker 2: kinds of things to the courts and sending these kinds

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Speaker 2: of things to state legislatures for the clear purpose of

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Speaker 2: chipping away at the equality and the rights that have

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Speaker 2: so recently been one in the LGBTQ plus community.

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Speaker 1: And there are fears the decision will not only chip

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Speaker 1: away at the rights of LGBTQ people, but will also

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Speaker 1: opened the door to discrimination on the basis of race, religion, sex, disability, age,

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Speaker 1: and other protected categories in a wide range of businesses,

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Speaker 1: something Justice Katanji Brown Jackson was concerned about during the

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Speaker 1: oral arguments.

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Speaker 3: Historically, opposition to interracial marriages and to integration in many

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Speaker 3: instances was on religious grounds. So I don't know that

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Speaker 3: we can say that just because we have a religious

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Speaker 3: objection to same sex marriage in this situation, that wouldn't

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Speaker 3: necessarily implicate religious objections to other kinds of situations.

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Speaker 1: My guest is Catherine Frankie, director of the Center for

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Speaker 1: Gender and Sexuality Law at Columbia Law School. How big

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Speaker 1: a blow is this to LGBTQ rights.

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Speaker 4: Well, the three or three creative case from the Supreme

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Speaker 4: Court is an enormous blow for LGBT rights, but not

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Speaker 4: only What's shocking about this decision is how broad it

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Speaker 4: was that the Court actually wrote a decision that gives

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Speaker 4: anybody who has an opinion in opposition to a law

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Speaker 4: a First Amendment right to not abide by that law,

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Speaker 4: whether it's LGBT equality rights or laws to prohibit race discrimination,

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Speaker 4: or you could refuse to serve Jewish people or interracial couples,

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Speaker 4: or for that matter, if you don't believe that climate

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Speaker 4: change is a real thing, you could not comply with

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Speaker 4: local regulations about the kind of air conditioning that you

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Speaker 4: have to have in your business, or really any law,

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Speaker 4: minimum wage laws, labor laws, etc.

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Speaker 1: Do you think the Court saw the implications of its decision,

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Speaker 1: how far ranging the implications are.

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Speaker 4: The Court had to understand that the ruling that they

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Speaker 4: were issuing was very broad. And part of why I

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Speaker 4: think that's the case is that the oral argument in

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Speaker 4: the case last fall, most of that argument was taken

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Speaker 4: up with a set of hypotheticals about how could you

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Speaker 4: put a limiting conditions on this very broad First Amendment speech? Right,

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Speaker 4: There were all sorts of questions that what turned out

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Speaker 4: to be the dissenting justices were asking of the lawyer

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Speaker 4: defending Laurie Smith, the owner of three ZHO three Creative,

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Speaker 4: about how we could possibly contain such a broad rule.

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Speaker 4: And the lawyer was unwilling to offer any kind of

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Speaker 4: limiting provisions or terms for this decision. And we see

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Speaker 4: that very very broad ruling in the Court's decisions from

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Speaker 4: last week.

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Speaker 1: And I remember Justice Kagan pointing out during oral arguments

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Speaker 1: that you designing a website is not necessarily expressive. You

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Speaker 1: could just be filling in the blanks with the couple's

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Speaker 1: name and things like that. So how does this tell

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Speaker 1: us what is expressive? What businesses are expressive?

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Speaker 4: Well, that's part of why this decision is so broad,

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Speaker 4: is that the court gives us very little about what

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Speaker 4: would count in future cases as a business that was

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Speaker 4: engaged in express of activity. So a few examples that

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Speaker 4: are very possible to be the next cases are things

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Speaker 4: like Applebee's a family restaurant. What does it mean for

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Speaker 4: a restaurant to be a family restaurant? Or a romantic

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Speaker 4: hotel in the Poconos, you know they're curating a kind

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Speaker 4: of experience for their customers. Or a theme park around

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Speaker 4: a plantation theme may not want to serve black customers

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Speaker 4: because black people were only enclaved on those plantations, not

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Speaker 4: people who were participating in the main life of the plantation.

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Speaker 4: So businesses create experiences for their customers all the time,

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Speaker 4: and that requires some kind of creative, expressive activity. Are

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Speaker 4: all of them also going to follow this rule that

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Speaker 4: they can refuse to serve customers that would violate the

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Speaker 4: sort of expressive core of their business purpose. As I

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Speaker 4: read the Supreme Court's three h three creative decision, it

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Speaker 4: opens the door for pretty much any business to be

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Speaker 4: able to say there's something creative about what we do,

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Speaker 4: and therefore complying with a human rights law or any

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Speaker 4: other law is forcing that we're expressing a viewpoint we

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Speaker 4: don't agree with. So one thing with a close reading

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Speaker 4: of the three h three Creative decision that I think

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Speaker 4: is worth noting is that the court decides that there's

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Speaker 4: a free speech right for Laurie Smith, the owner of

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Speaker 4: this business, and in doing so, normally, what happens is

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Speaker 4: it triggers a certain analysis from the court, which we

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Speaker 4: call strict scrutiny, like does the government have a compelling

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Speaker 4: interest to burden her free speech rights? And are they

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Speaker 4: furthering that interest in the most narrowly tailored fashion that

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Speaker 4: they could. What's remarkable is Justice Gorsuch doesn't engage in

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Speaker 4: any of that strict scrutiny reasoning. They just say that, yes,

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Speaker 4: she's engaged in speech protected by the First Amendment, and

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Speaker 4: that's the end of it. So what we're seeing is

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Speaker 4: not only a kind of creative and broad reading of

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Speaker 4: free speech rights, but then saying that these rights are absolute,

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Speaker 4: which we don't see in any other contexts where strict

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Speaker 4: scrutiny is triggered. So the standards for protecting the free

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Speaker 4: speech rights of evangelical Christians is elevated in three h

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Speaker 4: three creative in ways that I think should concern everyone.

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Speaker 1: I've always questioned why the court even took this case.

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Speaker 1: The website designer doesn't seem to have standing, she hasn't

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Speaker 1: been injured.

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Speaker 4: Well, that was a concern that many people had from

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Speaker 4: the very beginning, is that the lawsuit was filed before

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Speaker 4: she had even opened up her business. She was thinking

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Speaker 4: about starting a wedding website business, and she knew she

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Speaker 4: was in a state that prohibited sexual orientation and other

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Speaker 4: forms of discrimination by all businesses, and so she went

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Speaker 4: to court basically to get a get out of jail

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Speaker 4: free card before she'd even started her business. Now there's

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Speaker 4: been some to do in the media about there being

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Speaker 4: a couple who called a same sex couple who had

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Speaker 4: called her for a wedding site, and then it turned

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Speaker 4: out later that that was a fabricated couple. That actually

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Speaker 4: it doesn't matter because the lawsuit was filed before that

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Speaker 4: fake call came in, and the basis of the lawsuit

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Speaker 4: didn't turn on her actually even having opened her business yet,

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Speaker 4: let alone refuse service to any actual couple. She wanted

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Speaker 4: to know that the courts were going to insulate her

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Speaker 4: from any liability once she started serving customers, but only

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Speaker 4: had her sexual customers.

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Speaker 1: Does this tell us this case that even if a

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Speaker 1: state provides protections against bigotry as public accommodation's laws in

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Speaker 1: some twenty two states do that religious interests will trump that.

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Speaker 4: Well, what's surprising about this case is that it's actually

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Speaker 4: not a religious liberty case. It's a free speech case.

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Speaker 4: So if it had been a religious liberty case, she

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Speaker 4: would have to say, I have a sincerely held religious

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Speaker 4: belief that the institution of marriage is one man and

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Speaker 4: one woman, and I therefore don't want to serve or

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Speaker 4: endorse same sex marriages. That's a more narrow right than

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Speaker 4: what the court secured here, which is that I have

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Speaker 4: an opinion that opposes same sex marriage or prefers different

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Speaker 4: sex marriages. She doesn't have to show that that opinion

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Speaker 4: is religious at all. So it's a much broader right.

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Speaker 4: And what it says is that the Court is going

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Speaker 4: even further in a trend I've been watching with this court,

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Speaker 4: which is the creation of first class or top tier

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Speaker 4: constitutional rights and those are the rights of speech, religion,

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Speaker 4: gun right. And then below that, I would say, are

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Speaker 4: these second tier rights, rights to equality, whether it's race

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Speaker 4: based equality, sex based equality, reproductive rights, voting rights, or

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Speaker 4: LGBT equality. And when those second tier rights come into

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Speaker 4: some kind of tension with a first tier right, what

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Speaker 4: Justice Gorsuch said in three or three Creatives is that

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Speaker 4: the first tier right always wins. And this is a

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Speaker 4: totally different way to think about rights than we've ever

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Speaker 4: seen before.

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Speaker 1: There have been several decisions. There was the Colorado baker,

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Speaker 1: the Masterpiece cake Shop case, there was the Catholic Adoption Agency.

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Speaker 1: It seems to point to the court allowing religious groups

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Speaker 1: to discriminate.

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Speaker 4: It does whether it's discriminate or just not have the

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Speaker 4: law apply to them, because they quite frankly, feel that

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Speaker 4: they have to have fidelity to a higher law, you know,

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Speaker 4: God made law. And so it runs really contrary to

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Speaker 4: the idea of a secular society. And it's also, I

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Speaker 4: think a deeply anti democratic way to think about rights. Normally,

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Speaker 4: when the state passes the law that you don't agree with,

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Speaker 4: you go back to the legislature, you try to elect

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Speaker 4: different people, you try to get the law reversed, you

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Speaker 4: go back through the democratic process, and what we're seeing

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Speaker 4: now is that people are just raising their hand and saying, hey,

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Speaker 4: I don't agree with this law for religious reason or

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Speaker 4: any reason, and therefore I don't have to abide by it.

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Speaker 4: It's a real end run around the democratic process, where

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Speaker 4: often laws or passed you don't agree with. But part

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Speaker 4: of living in a democratic society is that you have

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Speaker 4: to abide by all the laws that are generally enacted

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Speaker 4: by the legislature. And that worries me as much as

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Speaker 4: the hit to LGBT rights here.

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Speaker 1: This decision doesn't really give guidelines to lower courts what's

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Speaker 1: an expressive business or not. Does that mean that it's

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Speaker 1: going to be sort of like the Second Amendment case

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Speaker 1: last term, which has led to all kinds of lower

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Speaker 1: court cases trying to figure out what that Second Amendment

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Speaker 1: right is that wasn't defined very well by the Court.

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Speaker 4: I think that's absolutely right, and the same was true

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Speaker 4: with Dobbs, that the Court is deciding these cases in

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Speaker 4: such broad terms, and particularly with Dobbs and saying, well,

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Speaker 4: the issue of abortion really doesn't belong in the Supreme Court.

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Speaker 4: It's something that should get dealt with in state legislatures.

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Speaker 4: But there were so many open questions left in that

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Speaker 4: decision and in bruin the gun control case, that there's

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Speaker 4: been a kind of of lawsuits filed in the aftermath

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Speaker 4: where trial courts are trying to figure out how to

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Speaker 4: apply these extremely broad rules. And also know that these

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Speaker 4: cases are brought by very well financed, very large evangelical

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Speaker 4: Christian advocacy groups that have been pushing and pushing and

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Speaker 4: pushing for these rules, and they have teed up already

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Speaker 4: after a case like three oh three Creative, what the

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Speaker 4: next cases will be and the cases after that. But

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Speaker 4: one thing I think is going to be interesting to

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Speaker 4: look for, and I call it a goose and gander problem,

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Speaker 4: is that what's good for the goose will be good

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Speaker 4: for the gander. And this First Amendment free speech right

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Speaker 4: that kind of insulated three h three Creative in its

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Speaker 4: owner Laurie Smith from complying with a human rights bar

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Speaker 4: or the equality laws in Colorado. That same ruling or

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Speaker 4: that same constitutional principle could be used by proponents of

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Speaker 4: abortion rights to extent that there are people who are

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Speaker 4: let's say, supporting people and getting access to abortion or

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Speaker 4: a medication of order in their states, they could say

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Speaker 4: that what they're doing is expressive or creative in nature,

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Speaker 4: and that for that reason, applying with the state's official

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Speaker 4: position on abortion violates their free speech right. So I

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Speaker 4: think it'll be interesting to see how this new rule

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Speaker 4: is deployed both by the right wing and the left wing,

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Speaker 4: both by those who oppose gay rights and reproductive rights,

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Speaker 4: but also those who support gay rights, racial justice, and

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Speaker 4: reproductive rights. So stay tuned. This is going to be

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Speaker 4: very interesting period over the next couple of years.

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Speaker 1: This conservative legal group, Alliance Defending Freedom, that brought this

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Speaker 1: case on behalf of the web designer, was the same

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Speaker 1: group that brought the Masterpiece cake Shop case on behalf

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Speaker 1: of the baker. So are they bringing more cases to

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Speaker 1: the forefront.

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Speaker 4: Oh, they absolutely are. One case to really keep an

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Speaker 4: eye on comes out of the fifth Circuit out of Texas,

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Speaker 4: and it was just decided two weeks ago, and it

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Speaker 4: was a case of a kind of mega doowner, conservative

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Speaker 4: Trump donor in Texas who owns a number of businesses,

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Speaker 4: employs a lot of people, and he's an evangelical Christian

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Speaker 4: and he says, I don't want to have to employ

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Speaker 4: anybody who isn't heterosexual or cisgendered. And so I want

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Speaker 4: to know in advance that I can be insulated from

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Speaker 4: discrimination charges against me and my business if I refuse

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Speaker 4: to hire gay people or trans people, or people who

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Speaker 4: are other than sisgendered. And I have a religious reason

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Speaker 4: for wanting an exemption basically from Title seven, a federal

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Speaker 4: anti discrimination and employment law. And the Fifth Circuit issued

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Speaker 4: a very very broad decision upholding his religious exemption claim,

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Speaker 4: carving a huge hole in the middle of Title seven.

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Speaker 4: That case will surely go to the Supreme Court in

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Speaker 4: the next month or so to see if they'll take it,

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Speaker 4: and that could easily be on the docket next year.

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Speaker 4: And that's one to watch out for. And it's the

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Speaker 4: same evangelical Christian law firm behind that case as all

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Speaker 4: these others. You know, as much as I think their

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Speaker 4: strategy is a complicated one and a wrong headed under

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Speaker 4: the Constitution, they are smart lawyers and they are really

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Speaker 4: gaining the favor of the Supreme Court in these kinds

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Speaker 4: of arguments.

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Speaker 1: Was it surprising or perhaps a disappointment that it was

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Speaker 1: Justice Neil Gorsich who wrote the majority opinion here when

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Speaker 1: he was the one who wrote the majority opinion in

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Speaker 1: boss Stock in twenty twenty that said Title seven protected

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Speaker 1: gay and transgender workers.

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Speaker 4: It wasn't shocking to me because what the Court is

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Speaker 4: actually telling us through the pen if you will, of

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Speaker 4: Justice Gorsich, is that they're prepared to recognize the rights

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Speaker 4: of the LGBT community so long as those rights don't

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Speaker 4: come into conflicts with a more important right like free

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Speaker 4: speech or religious liberty. And that's exactly what happened in

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Speaker 4: this three h three creative case. I'd also say that

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Speaker 4: the decision in Bostock, while the end result was a

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Speaker 4: good one, the reasoning was horrible and it didn't give

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Speaker 4: us anything to work with in this future to expand

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Speaker 4: or build on the equality rights the Court gave us

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Speaker 4: in that case. It's very mechanistic kind of technical reasoning

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Speaker 4: that says nothing about the values that underlie equality statutes

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Speaker 4: and why we care about as an important American value

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Speaker 4: treating everybody fairly in the workplace or elsewhere. But when

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Speaker 4: you get Gorstch or Alito or Thomas or the more

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Speaker 4: conservative members of the Court writing about religious liberty, they

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Speaker 4: go on and on about how important respecting religion is

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Speaker 4: as a fundamental American value. They just don't do the

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Speaker 4: same with respect to racial equality, sex based equality, or

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Speaker 4: LGBT equality. So it's a mechanistic decision, that Boss Stok

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Speaker 4: decision that actually doesn't really have legs.

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Speaker 1: Unfortunately, many people are asking the question whether same sex

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Speaker 1: marriage could be next.

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Speaker 4: Well, if we read Justice Thomas and his writings, his sense,

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Speaker 4: and his concurrences in the Supreme Court's Jurisprudens recently, he's

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Speaker 4: given us a pretty thorough to do list beyond overturning

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Speaker 4: Rovers's Wade and same sex marriage, even Lawrence versus Texas,

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Speaker 4: the case it said it was unconstitutional to criminalize sex

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Speaker 4: between two people of the same sex, but that is

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Speaker 4: also on the chopping block, along with rights to contraception.

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Speaker 4: All of those sexuality decisions that most people regarded as

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Speaker 4: settled law and really untouchable. In Justice Thomas's view, those

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Speaker 4: are next. So I think we have to wait and see.

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Speaker 4: Hopefully the Court won't move so quickly and so radically.

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Speaker 4: But what we saw on the Supreme Court this term

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Speaker 4: shows that they don't seem to be holding back in

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Speaker 4: a pretty radical right wing turn in their decisions.

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Speaker 1: Also, i'd just like you to talk a little bit

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Speaker 1: about this spike in legislation in state houses this year,

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Speaker 1: with more than five hundred and twenty five anti LGBTQ

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Speaker 1: bills introduced more than seventy signs so far, that's more

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Speaker 1: than double last year's number.

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Speaker 5: Well, one would.

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Speaker 4: Think that there was actually a crisis of trans kids

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Speaker 4: or gender nonconforming kids across the country. You know, I

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Speaker 4: think of a state like Idaho or Montana, and really

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Speaker 4: how many trans children are there in those states. But

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Speaker 4: from the amount of energy that's been brought to passing

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Speaker 4: these statutes, one would think that there's a real emergency

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Speaker 4: going on in those states, which of course is not

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Speaker 4: the case at all. But what we're seeing is groups

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Speaker 4: like Alliance Defending Freedom and others Family Research Council, these

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Speaker 4: conservative evangelical groups are cranking out model bills, providing them

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Speaker 4: to like minded state legislators who are using this just

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Speaker 4: seem spirited, hateful appeal to the sort of evil or

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Speaker 4: problem of trans kids as a way to mobilize their base.

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Speaker 4: A few years ago, they really realized that opposing same

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Speaker 4: sex marriage and regular gay people wasn't getting the bang

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Speaker 4: for the buck that they had hoped, and mobilizing the base.

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Speaker 4: So they shifted to the transgender and gender identity issue,

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Speaker 4: and it has been quite effective. They have really moved

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Speaker 4: the needle, I think, in public opinion about whether gender

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Speaker 4: affirming care is appropriate for young people, and really maintaining

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Speaker 4: the idea that trans people are monsters, they're somehow subhumans,

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Speaker 4: and it's a frightening time to be in this country,

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Speaker 4: and particularly to be a person who doesn't conform to

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Speaker 4: traditional gender norms. What I will say though, about these

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Speaker 4: new laws is that almost all of them have been

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Speaker 4: challenged in the court, and we're really kind of on

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Speaker 4: a winning streak, at least in the lower district courts,

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Speaker 4: where even conservative Trump appointed judges have found those laws

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Speaker 4: to be unconstitutional, and they've done so in ways that

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Speaker 4: clarify and strengthen parental rights to decide about the health

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Speaker 4: and well being of their children, but also about the

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Speaker 4: constitutional status of trans people in ways that I think

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Speaker 4: is kind of backfiring for those who oppose trans right.

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Speaker 4: So we'll see what happens to these cases those opinions

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Speaker 4: when they get appealed to the intermediate appellate courts and

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Speaker 4: then hopefully don't go to the Supreme court, although they could,

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Speaker 4: but for now I think the strategy, at least in

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Speaker 4: A and the federal courts, has backfired for those who

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Speaker 4: are targeting transsensitive care and gender nonconforming kids.

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Speaker 1: Thanks so much for your insights, Catherine. That's Professor Catherine Frankee,

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Speaker 1: director of the Center for Gender and Sexuality Law at

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Speaker 1: Columbia Law School. New York City is on the cutting

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Speaker 1: edge of setting rules for how companies can use artificial

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Speaker 1: intelligence in hiring and promotion decisions. New York City's Automated

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Speaker 1: Employment Decision Tool law requires employers that use AI and

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Speaker 1: other machine learning technology as part of their hiring process

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Speaker 1: to perform an annual audit of their technology. Failure to

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Speaker 1: comply with the new law, which is mandatory for any

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Speaker 1: company operating and hiring in New York City, could result

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Speaker 1: in fine starting at five hundred dollars the maximum penalty

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Speaker 1: of fifteen hundred dollars per instance. Joining me is labor

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Speaker 1: and employment attorney Nicholas Pappez, a partner at Dorsey and Whitney.

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Speaker 1: How has AI impacted hiring and promotion decisions?

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Speaker 5: A number of articles and studies out there indicating that

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Speaker 5: it's widely used by employers and has been for a

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Speaker 5: long time. There's one study that says as many as

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Speaker 5: eighty three percent of employers to ninety nine percent of

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Speaker 5: Fortune five hundred companies use AI to screen or rank

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Speaker 5: candidates for hire. So that suggests it's out there. Is

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Speaker 5: not only affected workers, but it's sort of part of

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Speaker 5: the fabric of the workplace. Now in the United States, how.

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Speaker 1: Are organizations allowed to use AI? How are they not

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Speaker 1: allowed to use AI? Let's say they want to enhance diversity.

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Speaker 1: Can they use AI to do that?

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Speaker 5: Well, that's a tricky question. The easier approach is what

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Speaker 5: are you not allowed to do with AI? You're certainly

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Speaker 5: not allowed to use AI in a way that has

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Speaker 5: a disparate what's called a disparate impact on workers with

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Speaker 5: protected characteristics, so for example, race, religion, sex, national origin, etc.

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Speaker 5: When I say disparate impact, that's a technical term that

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Speaker 5: employment lawyers and the law use to say that if

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Speaker 5: something has a disproportionate effect on those types of persons

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Speaker 5: in those classifications, that rule or law or practice will

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Speaker 5: be prohibited. In Title seven of the Civil Rights Act

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Speaker 5: of nineteen sixty four is the law that says that

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Speaker 5: the practice is prohibited unless the practice or rule is

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Speaker 5: what's described as job related for the position in question

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Speaker 5: and consistent with business necessity. Right. So there's a way

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Speaker 5: to justify rules or practices that have a disparate impact,

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Speaker 5: but the burden falls on the employer to justify those

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Speaker 5: types of practices.

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Speaker 1: So tell us about this New York City law.

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Speaker 5: So the New York City law, it's known as Local

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Speaker 5: Law one forty four, and that law affects what the

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Speaker 5: law describes as automated employment decision tools, which that's a

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Speaker 5: long way of saying AI artificial intelligence, right, And the

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Speaker 5: law defines automated employment decision tools as any computational process

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Speaker 5: derived from machine learning, statistical modeling, data analytics, or artificial

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Speaker 5: intelligence that issues simplified output, including a score, classification, or recommendation,

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Speaker 5: that is used to substantially assist or replace discretionary decision

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Speaker 5: making for making employment decisions that impact natural persons. So

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Speaker 5: that's a long description of AI. But if it's something

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Speaker 5: that is substantially used to assist or replace discretionary decision making,

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Speaker 5: you cannot use AI for hiring or promotions unless you

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Speaker 5: go through under this law what is called a bias

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Speaker 5: audit so the law requires that employers, before using AI

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Speaker 5: do an audit of the tool, also to disclose on

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Speaker 5: their websites a summary of the audit. And third that

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Speaker 5: the employer using AI give individual notice to candidates residing

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Speaker 5: in New York City that there'll be subject to the

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Speaker 5: use of this AI tool. And in that same notice,

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Speaker 5: the employer has to allow the candidate to quest some

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Speaker 5: alternative process or an accommodation. The notice also has to

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Speaker 5: describe the job qualifications and characteristics that the AI tool

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Speaker 5: will use in the assessment of the candidate. So that's

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Speaker 5: a lot of very technical compliance requirements. So starting today,

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Speaker 5: the Department of Consumer and Worker Protection will be enforcing

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Speaker 5: this law. And in effect, if the Department of Consumer

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Speaker 5: Worker Protection learns that AI is being used without compliance,

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Speaker 5: employers will be subject to a host of penalties.

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Speaker 1: How do you see the department enforcing.

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Speaker 5: This, Well, the department can receive complaints, the department can

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Speaker 5: do investigations. So are there any number of ways any

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Speaker 5: an enforcement agency can learn about the use of AI.

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Speaker 5: And so the law really is built upon requiring employers

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Speaker 5: to you self police and you know, in effect, if

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Speaker 5: you are using AI as an employer, you know it

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Speaker 5: and so you should be doing these disclosures and doing

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Speaker 5: the compliance.

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Speaker 1: So do you think that employers will have to start

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Speaker 1: hiring outside experts to make sure that you know they're incompliance.

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Speaker 5: Absolutely, In fact, that's required by the law. They mentioned

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Speaker 5: that the law requires a bias audit. The bias audit

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Speaker 5: has to be done as an impartial evaluation by an

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Speaker 5: independent auditor. So, in other words, a bias audit cannot

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Speaker 5: be done by the employer acting alone. The employer needs

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Speaker 5: to hire an independent auditor. That technology expert then has

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Speaker 5: to do a number of assessments. You have to look

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Speaker 5: at the algorithm, the technology that's being used, and then

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Speaker 5: calculate something called a selection rate, a score boring rate,

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Speaker 5: and determine an impact ratio for sex, race, ethnicity, and

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Speaker 5: also what's called intersectional categories of race, sex, and ethnicity.

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Speaker 5: So it's quite a complicated task and one of the

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Speaker 5: things employers may wish to do before publishing its bias

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Speaker 5: audit to do some testing. You know, before you go live.

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Speaker 5: You may want to have an expert look at these

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Speaker 5: things to assess whether it's permissible. I mean, one of

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Speaker 5: the things this bias audit would reveal is if there

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Speaker 5: is a disparate impact, which is prohibited by federal, state,

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Speaker 5: and local law.

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Speaker 1: Can you give us some examples of the kind of

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Speaker 1: tools that employers are using to screen out applicants.

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Speaker 5: The one that's most common and probably has been used

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Speaker 5: for a long time is what I would call a

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Speaker 5: resume screening tool. So a resume screening tool in effect

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Speaker 5: uses keyword searching, which if you've done a Google search,

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Speaker 5: you know what a keyword search is.

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Speaker 3: You.

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Speaker 5: So, if an employer is advertising for a job, an

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Speaker 5: employer may get a thousand resumes, but you don't want

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Speaker 5: to have to interview a thousand people necessarily. So in

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Speaker 5: order to efficiently go through the thousand resumes, maybe I'm

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Speaker 5: going to use a keyword search term that limits the

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Speaker 5: number of resumes I'm going to look at. So let's

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Speaker 5: say my job, in my fictitious job advertisement requires a

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Speaker 5: master's degree. If you don't have a master's degree, I

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Speaker 5: don't need to spend my time to interview you. So

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Speaker 5: I can, you know, perhaps do a search for the

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Speaker 5: different ways one might identify a master's degree, and so

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Speaker 5: call down my thousand resumes down to you know, fifty

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Speaker 5: or one hundred resumes. That will be a classic or

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Speaker 5: a simple way of using AI, just the simple use

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Speaker 5: of a search term. Another one that is very common

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Speaker 5: and one that where AI apparently is becoming used more

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Speaker 5: and more is video interview analysis. So video interview analysis

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Speaker 5: is basically recording candidates, which has probably become more used

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Speaker 5: during the pandemic when we're social distancing, right, you know,

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Speaker 5: for some employers they would require candidates to record themselves.

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Speaker 5: So let's say I'm searching and I want to use

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Speaker 5: this video interview analysis. I may have a set of

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Speaker 5: questions that I will have my candidates answer and record

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Speaker 5: themselves answering this series of questions. As the employer, I

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Speaker 5: get back a series of recordings of candidates answering these questions.

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Speaker 5: Well what do I do with that? Right, And this

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Speaker 5: is where AI comes in. The AI tool might analyze

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Speaker 5: facial expressions, tone of voice, body language, nonverbal cues, speech patterns, gestures,

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Speaker 5: you know, language, things like that, and based on that analysis,

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Speaker 5: the tool allows the employer to reach conclusions about the

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Speaker 5: employee based on their personalities, communication skills, problem solving skills, aptitudes, motivation,

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Speaker 5: and cognitive skills, and from those conclusions forecast how the

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Speaker 5: candidate might behave in the workplace.

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Speaker 1: Thanks for being on the show. That's Nicholas Poppis of

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Speaker 1: Dorsey and Whitney and that's it for this edition of

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Speaker 1: The Bloomberg Law Show. Remember you can always get the

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00:29:29,920 --> 00:29:33,160
Speaker 1: latest legal news on our Bloomberg Law Podcast. You can

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Speaker 1: find them on Apple Podcasts, Spotify, and at www dot

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Speaker 1: tune into The Bloomberg Law Show every weeknight at ten

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Speaker 1: to Bloomberg