Intent Is Not a Defense

Claire Monroe

Welcome to the show everybody! I'm Claire Monroe, here with Edwin Carrington. Edwin, there's a sentence I hear from hiring leaders all the time when the topic of AI screening comes up: we're not worried about bias, because nobody here is trying to discriminate. And I want to spend today on why that sentence offers almost no protection.

Edwin Carrington

It's a very human sentence, Claire, and it's built on a misunderstanding. Most people think discrimination is about intent. Someone meant to exclude someone. In American employment law, there's a second standard that has nothing to do with intent. It's called disparate impact, and it's been around for more than fifty years.

Claire Monroe

It goes back to a Supreme Court case from 1971, Griggs versus Duke Power. The company required a high school diploma and a pair of aptitude tests for certain jobs. Those requirements looked neutral on paper. But they screened out Black applicants at far higher rates, and the company couldn't show the requirements had anything to do with doing the job. The Court ruled that a practice can be neutral on its face and still be unlawful if it operates to exclude a protected group and isn't job related.

Edwin Carrington

That is the whole principle. The law looks at what the process does, not at what anyone meant. Congress later wrote it directly into Title Seven of the Civil Rights Act in 1991. So a hiring step that filters out a protected group at a much higher rate has to be justified by the actual demands of the job. If it can't be, good intentions won't save it.

Claire Monroe

And there's a practical yardstick for this. The federal Uniform Guidelines from 1978 use what's called the four-fifths rule. If the selection rate for one group is less than eighty percent of the rate for the group selected most often, that's treated as evidence of adverse impact.

Edwin Carrington

Which means adverse impact is something you can measure. And anything you can measure, you can be held accountable for not measuring.

Claire Monroe

So why does AI make this more urgent? Biased hiring steps have existed for a long time.

Edwin Carrington

Because AI turns one bad judgment into a rule that runs on every applicant, every day. A human interviewer with a bias makes a handful of bad calls a week. A screening rule with a bias makes thousands, consistently, and it leaves a perfect record of every one of them. That record is exactly what a disparate impact case is built on.

Claire Monroe

We've already seen that play out. In 2023 the EEOC settled what's widely described as its first case involving AI hiring software, against a tutoring company called iTutorGroup. Its application software automatically rejected women aged fifty-five or older and men aged sixty or older. More than two hundred qualified applicants were turned away. The settlement was three hundred sixty-five thousand dollars.

Edwin Carrington

And that one was blunt. Someone programmed an age cutoff. The harder cases are the ones where nobody programmed anything, and the model simply learned a pattern from past data that happens to track age or race or sex.

Claire Monroe

Which brings up the question I think every buyer asks. If we license the tool from a vendor, isn't the vendor responsible?

Edwin Carrington

That is the most dangerous assumption in the room, Claire. The employer makes the hiring decision, so the employer carries the exposure. You can't outsource accountability by outsourcing the software.

Claire Monroe

And the courts are starting to extend that exposure to vendors too, not move it away from employers. In the case Mobley versus Workday, a federal judge in California ruled in 2024 that a software vendor could plausibly be treated as an agent of the employers using it. Then in May 2025, the court let a nationwide age discrimination collective action move forward. So now both sides of the contract are in the frame.

Edwin Carrington

More parties on the hook, not fewer. That's the direction of travel.

Claire Monroe

I want to raise the obvious counterpoint, though. In April 2025, an executive order directed federal agencies to stop pursuing disparate impact claims. Doesn't that lower the risk?

Edwin Carrington

It changes who knocks on the door, Claire. It doesn't change the law. Disparate impact is written into the statute, and an executive order can't repeal a statute. Private plaintiffs can still bring these claims. Several states, including New York, California and Illinois, have their own protections. And New York City's Local Law one forty-four already requires annual independent bias audits for automated hiring tools. Enforcement priorities shift with every administration. Your hiring records will outlast all of them.

Claire Monroe

So what does a defensible process actually look like?

Edwin Carrington

Four things. Every step you use must be tied to the real demands of the job. You track pass-through rates by group at every stage, so you see a problem before a plaintiff does. You demand the validation evidence from any vendor, in writing. And a human stays accountable for the final decision. No tool should ever be the sole basis for a hire.

Claire Monroe

And that's the standard OAD holds itself to, right?

Edwin Carrington

It is. OAD is built as one structured input in the hiring decision, never the sole basis. It has been EEOC compliant since 2001, with no adverse impact on any protected class. It meets APA standards, independently reviewed in 2023. It has gone through three independent third-party validation cycles. And in thirty-eight years, there have been zero successful legal challenges. That record isn't luck. It comes from measuring behavioral drive against the demands of the role, and nothing else.

Claire Monroe

If you want to see what a validated, structured input looks like next to what you're running today, start with the person you trust most on your team. OAD's free Top Performer Profile takes seven minutes, you get results in twenty-four hours, and there's no credit card. That's O-A-D dot A-I.

Edwin Carrington

Good intentions are where fairness starts, Claire. Evidence is how you prove it.

Claire Monroe

Perfect place to leave it. Thanks for the wisdom, Edwin.

Edwin Carrington

Always a pleasure, Claire.