Thursday, May 30, 2024: ACLU Announced It Filed an FTC Complaint Alleging Tech Vendor Aon’s Claims of “Bias-Free” Hiring Tech Tools Violated FTC Act
Corporate Critics Hope For “A New Arrow in Their Sling”
The American Civil Liberties Union (“ACLU”) filed a complaint with the Federal Trade Commission (“FTC”) against hiring technology vendor Aon alleging that Aon is deceptively marketing widely-used online hiring tests as “bias-free” even though, according to the ACLU, the tests discriminate against job seekers based on traits like their race or disability. The ACLU asserts that these “bias-free” claims constitute a “deceptive act or practice” in violation of Section 5 of the FTC Act (15 U.S. Code §45(a). Section 5 of the FTC Act prohibits “[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce.”
The real story here is the increasing resort corporate critics are using to attack and seek to stop corporate action by trying to leverage use of the broad and ambiguous Federal Trade Commission’s “unfair competition” regulatory authority. [Note: We reported recently, that on April 23, a majority of the Federal Trade Commission approved, and on May 7 officially published, a Final Rule that generally bans all employers subject to the FTC’s regulatory authority from using non-compete clauses in agreements (“NCAs”) with workers. The Final Rule is scheduled to take legal effect on September 4, 2024, absent any injunction or court ruling either stopping the Rule or extending the date. It prohibits most NCAs as an “unfair method of competition” under Section 5 of the FTC Act. Both the NCA Final Rule and the ACLU’s FTC complaint against Aon cite the provisions of Section 5 of the FTC Act.]
In a corresponding press statement/blog accompanying its Complaint to the FTC, the ACLU elaborated:
“Two Aon products, a ‘personality’ assessment test and its automated video interviewing tool, which integrate algorithmic or AI-related features, are marketed to employers across industries as cost-effective, efficient, and less discriminatory than traditional methods of assessing workers and applicants. However, these products assess very general personality traits such as positivity, emotional awareness, liveliness, ambition, and drive that are not clearly job related (sic)or necessary for a specific job and can unfairly screen out people based on disabilities. The automated features of these tools exacerbate these fundamental problems, particularly as Aon incorporated artificial intelligence elements in its video interviewing tool that are also likely to discriminate based on disability, race, and other protected characteristics.
Cognitive ability assessments, another staple in hiring, must also be subject to scrutiny, as they have long been shown to disadvantage Black job candidates and other candidates of color and may also unfairly exclude individuals based on disability. These tests, touted to measure aspects of memory, as well as several others it markets, have racial disparities in performance.
For autistic and other neurodivergent job applicants and applicants of color, cognitive ability assessments pose a significant barrier to employment. Not only do they fail to accommodate diverse needs, but they also perpetuate discrimination based on race, disability, and other traits. Employers should not use assessments that carry a high risk of discrimination. Employers risk screening out people who could be successful employees, impacting diversity in the workplace, and could face legal liability, even where the assessments are designed and administered by third-party vendors. Employers have a legal obligation to thoroughly vet any assessments they use for compliance with anti-discrimination laws, and if they decide to use an assessment, they must provide meaningful notice so that disabled workers can make an informed choice whether to seek accommodations or alternative processes.”
Throughout its almost 50-page complaint, including via multiple footnotes, the ACLU cites research supporting the above assertions.
The ACLU also noted in its press statement that the Equal Employment Opportunity Commission’s (“EEOC”) arguments in an amicus (i.e. “friend of the court”) brief on behalf of a rejected jobseeker in the case of Mobley v. Workday, Inc. pending in the U.S. District for the Northern District of California (San Francisco (No. 3:23-cv-00770). The jobseeker asserted, in part, that Workday, Inc., is subject to federal anti-discrimination laws as an “employment agency,” “indirect employer,” or an “agent” of employers. “Workday is a type of intermediary that Congress meant federal anti-discrimination laws to cover,” the EEOC asserted in its brief. (See our story on that amicus brief here). The ACLU further stated that its “FTC complaint should serve as notice to vendors that [the ACLU] will seek to hold them accountable under consumer protection laws as well.”
Moreover, the ACLU reported in its press statement that they and their co-counsel have also filed charges with the EEOC against both Aon and an employer that uses Aon’s assessments on behalf of a biracial (Black/white) autistic job applicant who, the ACLU alleges, was required to take Aon assessments as part of the employer’s hiring process.