The American Civil Liberties Union and the ACLU of Northern California filed a complaint Tuesday with the California Civil Rights Department, alleging Criteria Corp., a hiring and employment assessment firm, sells a product that may disproportionately screen out applicants with autism, in violation of California’s Fair Employment and Housing Act.
The product in question, Emotify, assesses candidates for emotional intelligence through matching and prediction games as well as an emotional problem-solving scenario game, per the company’s website.
ACLU claimed in its complaint that this assessment “parallels clinical diagnostic tools for autism so closely that it constitutes a disability-related inquiry or medical or psychological examination, which is prohibited by state law before an employment offer is made.” The areas where the tools differ, according to ACLU — including the speed at which the assessments take place — “only increase the risk of disparate impact.”
Emotify also does not give candidates enough information to decide whether they would need an accommodation or alternative assessment, in violation of state law, the complaint alleged.
Criteria Corp. did not respond to a request for comment by press time.
While ACLU’s complaint largely focuses on Emotify, it makes mention of the company’s other offerings that may “raise concerns around discrimination based on disability, race, and sex that merit further investigation.”
Early in the creation of Cognify, for example — its cognitive aptitude assessment — its developers flagged “statistically significant and practically meaningful disparities based on race (for Black assessment-takers vs. White assessment-takers) and gender (for female assessment-takers vs. male assessment-takers),” ACLU said.
“Both vendors and employers have a legal obligation to thoroughly vet any assessments to ensure that they comply with anti-discrimination laws,” Olga Akselrod, senior counsel for ACLU’s Racial Justice Program, said in a statement.
AI hiring tools have come under fire in recent years, with varying degrees of success in the courts.
Sirius XM was recently granted summary judgment in a case where the plaintiff accused the company of using hiring software that disproportionality screened out African American job applicants. In that case, the court said the plaintiff had not shown how the employer’s alleged use of AI discriminated against him.
But one of the bigger names in the space, Workday, has not been able to shake an ongoing case examining whether its screening tools violated California law. That case, like ACLU’s complaint, involves FEHA.
