Dive Brief:

• An employer will pay $84,832 to settle U.S. Department of Justice claims that it "requested more or different documents than necessary" when attempting to reverify the continued work authorization of non-U.S. citizens, in violation of the Immigration and Nationality Act, according to an Aug. 25 announcement.
• Ascension Health Alliance allegedly programmed its customized employment eligibility verification software program to track the expiration dates of non-U.S. citizen employees’ documents and to send automated emails requesting proof of continued work authorization for the documents they submitted along with their Form I-9. In some cases, the company required non-U.S. citizen employees to submit new documents to continue working, even though reverification of employment eligibility was not required, DOJ said. Ascension did not program the software to email its U.S. citizen employees when their own documents neared expiration. 
• Commenting on the case, Assistant Attorney General Kristen Clarke said the investigation demonstrates that the DOJ is committed to enforcing federal civil rights laws and will "hold employers accountable" if their software usage results in unlawful discrimination. "Employers are reminded that while software programs may seem efficient, there is still a responsibility to ensure that programming decisions do not result in discrimination," she said in a statement.

Dive Insight:

DOJ’s investigation demonstrates that the government is taking seriously the possibility of technologically-enabled and potentially inadvertent discrimination claims. As more HR features shift to online systemization and automation, leaders need to be wary of the ways discrimination can sneak into systems designed for efficiency. 

Over the past few years, for example, software companies have increasingly considered how diversity and inclusion factor into their platforms. Leaders at outbound recruiting technology firm Gem previously described for HR Dive the challenges of relying on artificial intelligence in recruiting software as well as the promise of using analytics to address issues of inequity.

Some leaders have grown concerned that the shift to AI is moving too fast, particularly as the pandemic has forced major changes on the workforce. Many business leaders do not have a good grasp on what organizations are doing to "control and govern" artificial intelligence and are concerned about the associated risks, a professional services network executive previously told HR Dive’s sister publication, CIO Dive. 

To avoid situations like the one DOJ described, HR can work with IT teams to standardize tech systems and familiarize themselves with the ways they can run afoul of the Immigration and Nationality Act in their efforts to keep non-U.S. citizen employees’ information up to date.

It’s also important to note that the U.S. Equal Employment Opportunity Commission is watching this issue. The commission, which enforces federal nondiscrimination employment laws, "must be a leader in this area," Commissioner Keith Sonderling said during an April conference presentation. To stay off the agency’s radar, he recommended employers evaluate tech "early and often" for biased outcomes and reengineer as appropriate.