Digital innovations and advances in artificial intelligence have produced a range of novel talent identification and assessment tools. Many of these technologies promise to help organizations improve their ability to find the right person for the right job, and screen out the wrong people for the wrong jobs, faster and cheaper than ever before.
When used in the hiring context, new technologies raise a number of new ethical and legal issues around privacy, which we think ought to be publicly discussed and debated, namely:
1. Privacy relating to personal attributes.
As technology advances, big data and AI will continue to be able to determine “proxy” variables for private, personal attributes with increased accuracy. Today, for example, Facebook “likes” can be used to infer sexual orientation and race with considerable accuracy. How the courts will handle situations where employers have relied upon tools using these proxy variables is unclear; but the fact remains that it is unlawful to take an adverse action based upon certain protected or private characteristics — no matter how these were learned or inferred.
2. Privacy relating to lifestyle and activities
Big data is following us everywhere we go online and collecting and assembling information that can be sliced and diced by tools we can’t even imagine yet — tools that could possibly inform future employers about our fitness (or lack thereof) for certain roles. And big data is only going to get bigger; according to experts, 90% of the data in the world was generated in just the past two years alone.
In general, state and federal courts have yet to adopt a unified framework for analyzing employee privacy as related to new technology. The takeaway is that at least for now, employee privacy in the age of big data remains unsettled. This puts employers in a conflicted position that calls out for caution: Cutting-edge technology is available that may be extremely useful. But it’s giving you information that has previously been considered private.
3. Privacy relating to disabilities.
The Americans with Disabilities Act puts mental disabilities squarely in its purview alongside physical disabilities, and defines an individual as disabled if the impairment substantially limits a major life activity, if the person has a record of such an impairment or if the person is perceived to have such an impairment. The category of people protected under the ADA may now include people who have significant problems communicating in social situations, people who have issues concentrating or people who have difficulty interacting with others. In addition to raising new questions about disabilities, technology also presents new dilemmas with respect to differences, whether demographic or otherwise.
In conclusion, new technologies can already cross the lines between public and private attributes, “traits” and “states” in new ways, and there is every reason to believe that in the future they will be increasingly able to do so. There are no easy answers to many of the new questions about privacy we have raised here, but we believe that they are all worthy of public discussion and debate.
(Ben Dattner is an executive coach and organizational development consultant. Tomas Chamorro-Premuzic is the chief talent scientist at ManpowerGroup, where Richard Buchband is senior vice president, general counsel and secretary and Lucinda Schettler is a senior attorney.)