Many businesses are continuing to hire for open positions during the COVID-19 pandemic. Employers that need to continue their hiring processes may see video conferencing platforms as a valuable tool to complete job interviews while maintaining physical distancing. While affording interview participants a more personable experience than a simple telephone interview, these software services can raise unique challenges and potential legal issues that employers may want to take into consideration.
Disparate Impact Claims Related to Technology Access Concerns
Disparate impact claims allege that an employer’s neutral policy has a disproportionate impact on a particular class or classes of individuals protected by equal employment opportunity laws. When a company requires an individual to participate in a job interview by video, there may be an assumption that the candidate has access to the necessary technology. However, this may not always be the case—for a variety of reasons. A 2019 survey conducted by the Pew Research Center reported that older individuals may have less access to broadband internet at home, from where many job candidates will conduct video interviews. Another survey conducted by the Pew Research Center in 2019 reported that white respondents were more likely to own desktop or laptop computers than African-American or Hispanic respondents. The Equal Employment Opportunity Commission reported in its 2019, 2018, and 2017 fiscal year statistical releases that age and race were the two protected categories most identified with discrimination charges filed related to hiring issues. While some federal circuit courts of appeal have held that external job applicants may not pursue disparate impact claims under the Age Discrimination in Employment Act, state and local laws may continue to apply. To address potential issues of disproportionate impact, employers may want to consider remaining flexible and providing alternatives to job candidates who report they are unable to participate in video interviews due to technological limitations.
Accommodations for Individuals with Disabilities
Individuals with disabilities may experience similar access-to-technology issues that interfere with their ability to participate in a video interview. Unlike other federal laws, the Americans with Disabilities Act (ADA) may require a company to consider granting a reasonable accommodation that allows an individual to participate in a video interview or an alternative means of evaluation.
Unfamiliar Equal Employment Opportunity Protections
Candidates who sit for video interviews may be located in different cities, counties, or states than the potential employers conducting the interviews. The laws of these different geographic locations may provide unique equal employment opportunity protections. When a business rejects a candidate for employment, a question may arise regarding whether the employer made the decision based on a protected category established by the candidate’s local or state law. Whether such laws apply can be a complex question with an answer that depends, in part, on how a particular ordinance or statute defines an employer and an employer’s connection to that jurisdiction. Employers may want to consider reviewing and incorporating the protected categories established by the jurisdictions where candidates reside to avoid claims of unlawful bias in decisions about whether to make job offers.
The Unexpected Visitor to an Interview
Many people have seen a viral video or news story of a video news interview in which an interviewee’s child entered the camera’s view. Video interviews give employers insights into a candidate’s home circumstances to a greater degree that they could get from a discussion that takes place at the employer’s facility. An adverse employment decision based on concerns related to the individuals in the family’s home may give rise to claims of discrimination due to caregiver responsibilities under Title VII of the Civil Rights Act of 1964 or the ADA. Moreover, other information that can be gleaned from the background of the candidate’s video frame may convey information about protected category status. To help reduce the chance of learning about unwanted information, the interviewer may want to consider asking interviewees to utilize virtual backgrounds to eliminate background scenery.
Recording the Interview
Many video conferencing platforms make it easy to record a discussion for later review. While this may be a useful tool to allow nonparticipants to review the interview, the decision to use this feature may implicate state privacy and wiretapping laws that limit the right to record conversations. Generally, states fall into one of two groups with respect to wiretapping laws: (1) “one-party consent” states that require the approval of one party to the conversation to record it; or (2) “two-party” consent states that require the approval of all parties to the conversation to record it.
Again, complex questions related to which law applies can arise for businesses that sit in a one-party consent state while interview candidates participate in video interviews from two-party consent states. Employers may want to determine prior to any interview whether there is a need to record the interview, and if there is such a need, obtain the written consent of all participants in order to avoid concerns over obtaining the interview subject’s approval.
Artificial Intelligence Applied to Video Interviews
Some employers may consider using new developments in artificial intelligence (AI) software that can be applied to recordings of video interviews. These technologies can help to screen candidates based on the substance and manner of responses delivered to standard screening questions.
At a fundamental level, these applications are based on algorithms constructed by human programmers that may unintentionally incorporate discriminatory bias against certain groups of individuals. Employers that take advantage of AI in this regard may want to monitor and review the candidates who have not advanced in the hiring process to ensure individuals are not disproportionately affected on the basis of protected categories. Additionally, companies may consider asking their AI vendors for information about the algorithms that will be applied to their hiring processes to confirm individuals are not directly affected by their protected class status. For example, AI that eliminates candidates based on their failure to maintain eye contact could be the result of a physical or mental health condition.
Video interview technology provides an opportunity for employers to continue with their hiring processes while limiting physical contact. Employers may want to review, consider, and address the unique legal issues that are raised when conducting video interviews to make job candidate selections.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.