The Perils of Algorithmic Hiring and Title VII
latory agencies . In terms of judicial review , if Congress has not directly addressed the precise question at issue , the court will consider the issue only if the agency ’ s answer is based on a permissible construction of the statute . 57 Chevron deference has been a powerful tool of regulatory agencies , as it has allowed for the enforcement of the spirit of the law in the face of emerging technological and social changes . However , Chevron is not above criticism , and current Supreme Court Justice Neil Gorsuch has expressed serious doubts about the legality of the legislative branch ’ s power to delegate power to the executive branch . 58 In terms of the disparate impact of algorithmic hiring , whether the final answer on how to handle these cases comes from the EEOC or the Courts , it is an issue that will someday have to be addressed .
Unfortunately , the EEOC guidelines on hiring practices can be rather nebulous in terms of algorithmic hiring . Hiring procedures that have an adverse impact constitute discrimination unless they are justified . 59 However , when two or more selection procedures are available that serve the user ’ s legitimate interest , and are substantially equally valid for a given purpose , the user should use the procedure demonstrated to have a lesser adverse impact . 60 In terms of algorithmic hiring practices , a company could run millions of permutations on the data leading very different results in whom to interview . The algorithms are also constantly evolving , and at each stage could prove to be more or less discriminatory to some combination of protected applicants .
The EEOC does mandate that records be kept , especially in regard to potentially impact . Employers should maintain and have available for inspection records or other information which will disclose the impact tests , and other selection procedures have upon employment opportunities by race , sex ,
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