pApplying for jobs can be a difficult and frustrating experience: you’re putting forward your qualifications to be judged by a prospective employer. We all want to be treated fairly. We want our qualifications to speak for themselves. But for job seekers who have been historically excluded or discriminated against because of their race, gender identity, or disability, there can be another question lurking in the background: Am I being judged, not for my ability to do the job, but for my identity?/p pAutomated decision-making tools, including those using artificial intelligence, or AI, and algorithms, have been widely adopted in hiring. Today seven out of 10 employers use them. We have a href=https://www.aclu.org/news/racial-justice/how-artificial-intelligence-might-prevent-you-from-getting-hiredpreviously written/a about AI and some of the newer ways that it’s impacting hiring, including how it lacks transparency and can harbor serious flaws that lead to bias and discrimination. But these tools are just the latest frontier in a long history of employment tests that can discriminate and harm job seekers. For example, one of the landmark civil rights cases, a href=https://supreme.justia.com/cases/federal/us/401/424/Griggs v. Duke Power Co (1971)/a, was about a company’s use of bogus tests to a href=https://www.eeoc.gov/meetings/meeting-january-31-2023-navigating-employment-discrimination-ai-and-automated-systems-new/mooreblock the promotion of Black workers/a./p div class=mp-md wp-link div class=wp-link__img-wrapper a href=https://www.aclu.org/news/racial-justice/how-artificial-intelligence-might-prevent-you-from-getting-hired target=_blank tabindex=-1 img width=1200 height=628 src=https://assets.aclu.org/live/uploads/2024/05/70424f4c0d4ad921d1e27da6125a765d.jpg class=attachment-4x3_full size-4x3_full alt= decoding=async loading=lazy srcset=https://assets.aclu.org/live/uploads/2024/05/70424f4c0d4ad921d1e27da6125a765d.jpg 1200w, https://assets.aclu.org/live/uploads/2024/05/70424f4c0d4ad921d1e27da6125a765d-768x402.jpg 768w, https://assets.aclu.org/live/uploads/2024/05/70424f4c0d4ad921d1e27da6125a765d-400x209.jpg 400w, https://assets.aclu.org/live/uploads/2024/05/70424f4c0d4ad921d1e27da6125a765d-600x314.jpg 600w, https://assets.aclu.org/live/uploads/2024/05/70424f4c0d4ad921d1e27da6125a765d-800x419.jpg 800w, https://assets.aclu.org/live/uploads/2024/05/70424f4c0d4ad921d1e27da6125a765d-1000x523.jpg 1000w sizes=(max-width: 1200px) 100vw, 1200px / /a /div div class=wp-link__title a href=https://www.aclu.org/news/racial-justice/how-artificial-intelligence-might-prevent-you-from-getting-hired target=_blank How Artificial Intelligence Might Prevent You From Getting Hired /a /div div class=wp-link__description a href=https://www.aclu.org/news/racial-justice/how-artificial-intelligence-might-prevent-you-from-getting-hired target=_blank tabindex=-1 p class=is-size-7-mobile is-size-6-tabletAI-based tools are used throughout hiring processes, increasing the odds of discrimination in the workplace./p /a /div div class=wp-link__source p-4 px-6-tablet a href=https://www.aclu.org/news/racial-justice/how-artificial-intelligence-might-prevent-you-from-getting-hired target=_blank tabindex=-1 p class=is-size-7Source: American Civil Liberties Union/p /a /div /div pWhen tests and tools that have a long history of problems are combined with new technologies like AI, risks of harm only increase, exacerbating harmful barriers to employment based on race, gender, disability, and other protected characteristics. While the harm of racial discrimination in employment tests has long been recognized and challenged, there has been less awareness about how these tests impact applicants who, in addition to facing racial discrimination, face discrimination based on their disabilities./p pThe use of personality assessments in hiring processes has become increasingly common. Yet these tests often ask general questions that may have little to do with the ability to do the job and capture traits that are directly linked with characteristics commonly associated with autism and mental health conditions such as depression and anxiety. This creates a high risk that qualified workers with these disabilities will be disadvantaged compared to other workers and may be unfairly and illegally screened out./p div class=mp-md wp-link div class=wp-link__img-wrapper a href=https://www.aclu.org/know-your-rights/know-your-digital-rights-digital-discrimination-in-hiring target=_blank tabindex=-1 img width=750 height=375 src=https://assets.aclu.org/live/uploads/2023/11/9adf74e5819f7726f6dd759d712b47eb.jpg class=attachment-4x3_full size-4x3_full alt=A graphic featuring a diverse group of individuals. decoding=async loading=lazy srcset=https://assets.aclu.org/live/uploads/2023/11/9adf74e5819f7726f6dd759d712b47eb.jpg 750w, https://assets.aclu.org/live/uploads/2023/11/9adf74e5819f7726f6dd759d712b47eb-400x200.jpg 400w, https://assets.aclu.org/live/uploads/2023/11/9adf74e5819f7726f6dd759d712b47eb-600x300.jpg 600w sizes=(max-width: 750px) 100vw, 750px / /a /div div class=wp-link__title a href=https://www.aclu.org/know-your-rights/know-your-digital-rights-digital-discrimination-in-hiring target=_blank Know Your Rights | Know Your Digital Rights: Digital Discrimination in Hiring /a /div div class=wp-link__description a href=https://www.aclu.org/know-your-rights/know-your-digital-rights-digital-discrimination-in-hiring target=_blank tabindex=-1 p class=is-size-7-mobile is-size-6-tabletEqual access to job opportunities is a core component of economic justice. Increasingly, employers are using automated tools in their hiring.../p /a /div div class=wp-link__source p-4 px-6-tablet a href=https://www.aclu.org/know-your-rights/know-your-digital-rights-digital-discrimination-in-hiring target=_blank tabindex=-1 p class=is-size-7Source: American Civil Liberties Union/p /a /div /div pTo push back, we a class=Hyperlink SCXW161865474 BCX0 href=https://www.aclu.org/documents/aclu-complaint-to-the-ftc-regarding-aon-consulting-inc target=_blank rel=noreferrer noopenerfiled a complaint/a to the Federal Trade Commission (FTC) against Aon, a major hiring technology vendor, alleging that Aon is deceptively marketing widely used online hiring tests as “bias-free” even though the tests discriminate against job seekers based on traits like their race or disability. The ACLU and co-counsel have also filed charges with the Equal Employment Opportunity Commission (EEOC) against both Aon and an employer that uses Aon’s assessments on behalf of a biracial (Black/white) autistic job applicant who was required to take Aon assessments as part of the employer’s hiring process./p pTwo Aon products, a “personality” assessment test and its automated video interviewing tool, which integrate algorithmic or AI-related features, are marketed to employers across industries as cost-effective, efficient, and less discriminatory than traditional methods of assessing workers and applicants. However, these products assess very general personality traits such as positivity, emotional awareness, liveliness, ambition, and drive that are not clearly job related or necessary for a specific job and can unfairly screen out people based on disabilities. The automated features of these tools exacerbate these fundamental problems, particularly as Aon incorporated artificial intelligence elements in its video interviewing tool that are also likely to discriminate based on disability, race, and other protected characteristics./p pCognitive ability assessments, another staple in hiring, must also be subject to scrutiny, as they have long been shown to disadvantage Black job candidates and other candidates of color and may also unfairly exclude individuals based on disability. These tests, touted to measure aspects of memory, as well as several others it markets, have racial disparities in performance./p pFor autistic and other neurodivergent job applicants and applicants of color, cognitive ability assessments pose a significant barrier to employment. Not only do they fail to accommodate diverse needs, but they also perpetuate discrimination based on race, disability, and other traits. Employers should not use assessments that carry a high risk of discrimination. Employers risk screening out people who could be successful employees, impacting diversity in the workplace, and could face legal liability, even where the assessments are designed and administered by third-party vendors. Employers have a legal obligation to thoroughly vet any assessments they use for compliance with anti-discrimination laws, and if they decide to use an assessment, they must provide meaningful notice so that disabled workers can make an informed choice whether to seek accommodations or alternative processes./p pBut vendors must also be accountable for the tools they market. Employers can hold vendors accountable by demanding that vendors truly design their products to be inclusive – including by incorporating the perspectives and experiences of people with disabilities and other protected groups into their design process #8212; and conduct thorough auditing for discrimination based on race, disability and other protected characteristics. They can also demand transparency and decline to purchase their products if they fail to do so. And vendors can and should also be held legally accountable for their discriminatory products and deceptively marketing them. As the EEOC recently a href=https://www.eeoc.gov/litigation/briefs/mobley-v-workday-incargued/a in a federal case about discrimination in an online hiring product, vendors can be held accountable under employment discrimination laws, and our FTC complaint should serve as notice to vendors that we will seek to hold them accountable under consumer protection laws as well./p pAs the hiring landscape continues to change and job applicants face new hiring tools, we must strive for a future where skills and potential, not bias, determines our opportunities. The ACLU stands ready to defend the rights of individuals wronged by discriminatory practices. Together, we can dismantle discriminatory barriers and build a more inclusive workforce for all./p

Last year, the Supreme Court overturned its prior holdings on affirmative action, effectively ending race-conscious admissions practices in most colleges and universities and, consequently, restricting the ability of schools to address systemic racial inequalities that persist in higher education. But the court’s decision was left with one exception: military service academies. Now, the same group that brought to the Supreme Court the case that overturned affirmative action, Students for Fair Admissions (SFFA), is suing the U.S. Naval Academy and West Point, alleging in two separate lawsuits that the military academies’ use of race in their admissions processes is unconstitutional.

Affirmative action at service academies is essential for confronting our military’s discriminatory history, which continues to impact service members of color. The ACLU, the ACLU of Maryland, and NYCLU, along with our partners NAACP Legal Defense Fund and the National Association of Black Military Women, filed two amicus briefs in New York and Maryland in support of affirmative action, highlighting the experiences of people of color, specifically the unique experience of Black women in the military.

We recently spoke with three veterans who are members of the National Association of Black Military Women. They shared insight into their personal experiences and challenges within the military — from facing unachievable uniform requirements to highlighting the importance of representation. Our conversation has been edited for length and clarity.

ACLU: Could you tell us about your time in the military and why you decided to join?

Veteran Todd: I was working a few jobs, going to school, and times were tough. This was a way to get out of Detroit and also do something really amazing and scary. It was very important for me to take some time to find myself, grow up a little bit, explore the world, and see what the American dream was about. I’ve always been in jobs that were geared towards service. For me, it was just important to learn to take care of myself and then taking care of others just came naturally.

ACLU: How important is it to have military leadership that represents the diversity of service members?

Veteran Todd: Having a role model, mentorship, and someone who is culturally competent of what African Americans go through, while also allowing others to get some exposure to that type of leadership, is important in addressing discrimination. It definitely affects morale and the cohesion of the group to walk into a room and look around, and no one looks like you at your job, at a hearing, or at a base. It’s also super important when you think about retention and recruitment. If I am not comfortable or I’m not in a place where I feel like I’m in alignment with who I’m surrounded by, it’s really tough. You don’t feel accepted, welcomed, or valued. The other part of this is seeing what’s possible, and being able to learn from each other and what their experiences were. Seeing those positive examples and building credibility and trust with people that are not like you – that exposure opens up your mind.

ACLU: The military imposes certain uniform requirements that can disproportionately impact people of color. Did the uniform requirements affect your time in the military?

Veteran Todd: That was a big deal for me in the military. When it came to uniforms, the regulations were not put in place for us. It was put in place for people with hair that could conform to those regulations. Our hair doesn’t do that. We have to do a little more extra. I was the yeoman that kept instructions in my pocket because they were up for interpretation. I used to get stopped all the time about my hair. There was this one time where I was actually put at attention by a superior. He said I was distracting the sailors and needed to do something about myself. I didn’t have any makeup on, my hair was natural, and I had on overalls and big boots, so I didn’t know what he wanted me to change. I looked around at every other Black girl on that ship; their hair was shaved off. Then I looked at some of our counterparts who had flipped up hair and all this extra stuff. Were they getting pulled to the side? Absolutely not. I’m really glad that they began to change some of those regulations.

ACLU: Could you tell us about your time in the military and why you decided to join?

Retired Chief Master Sgt. Flagg-Briggs: It was rewarding. It was awesome and it was tough. I joined the military because I wanted to do more for my community. I felt the need to serve others and in my mind, the best way was to serve my country. I would be serving everybody by joining the military.

ACLU: Our amicus highlights that people of color collectively make up as much as 37 percent of the enlisted ranks, but only 14.8 percent of the highest pay grade officers. How do you think this affects the experiences of service members of color?

Retired Chief Master Sgt. Flagg-Briggs: When I first came into the military, there was no one that looked like me in a lot of the rooms that I entered. When you don’t see people in the room that represent you, you don’t feel heard. They don’t understand where we’re coming from or how it makes us feel to not see someone that looks like us in higher rank positions. How can they decide uniform policies like how my hair should be, or how the makeup fits my face, or what color is my natural hair color? Those things came up a lot in the military. It affects morale, and it affects people wanting to join.

I was very heavy on joining an organization that promoted diversity because I thought it was important that men, women, Black, white, different nationalities be represented. It gave me a greater understanding of their perspective, and I was able to share my perspective. We were able to gather our thoughts, our differences, and come up with a common solution that would make everybody feel included.

ACLU: Disciplinary hearings affecting service members are reviewed by the military’s own judge panel. How important is it to have leadership that represents the diversity of service members and understands different upbringings?

Retired Chief Master Sgt. Flagg-Briggs: That is extremely important. Sometimes when the decisions are made, it perpetuates in your mind that there’s no way they understand who I am or what I represent, because that opinion doesn’t sound like it is for me. There have been examples where there was one type of solution or punishment that was going to be put upon a person and because I was in the room, I helped them understand that it wasn’t as they saw it. The relief that they got from having me in the room was astounding. Many times I was the only woman of color or the only person of color in the room, and I was always opinionated and spoke for folk that were on the line. That was truly important during my 35 years of service. Rising to the rank of Chief, it made me more aware. It helped me help others to understand why it’s important to get in the room, earn more rank, so that we can be better understood, and we could share our experiences and other folks would understand as well.

ACLU: Could you tell us about your time in the military and why you decided to join?

Veteran Mintlow: When I joined, it was about me getting money for school. But as you’re gaining education and knowledge of what this branch has gone through, the wars it has fought and won for our country, and you built a relationship with the branch, you learn the importance. So then it becomes, I served my country, I did my part, I put my life on the line.

ACLU: The military imposes certain uniform requirements that can disproportionately impact people of color. Did the uniform requirements affect your time in the military?

Veteran Mintlow: It wasn’t necessarily uniforms that were my issue. It was the weight requirement. Once you hit the maximum weight requirement, they will do what’s called a body fat measurement. When they do that for women, they measure our necks, our waists, and hips. I still believe that is not a fair measurement for women of color. In my culture and as a Black woman, the widest part of my body is my hips, and there is nothing I can do about it. There are some things that we cannot fix, and to have that held against me, it negatively impacted my military career. I was at a point in my career where I was supposed to get a meritorious promotion, but did not get it because I was considered overweight by their metrics.

ACLU: Why is it important to have representation in the military?

Veteran Mintlow: It’s important to have a diverse population amongst enlisted members and officers so that people who are not in the military have an opportunity to see themselves in the military. When I wasn’t in the military, every person I saw in the Marine Corps was a man. So while I was at my recruiter’s office, they had a poster on the wall of a Black woman in a blue dress, and I said, I need to see her in real life. When I went to the Military Entrance Processing Station, which is where you do your swearing in and you sign all your paperwork, I met a Black woman. She was my visual. I knew I could do this because she looked like me and she did it. It’s very important to have those role models and those mentors in real life. When we see people who are like us, doing these things, it gives us the initiative, the drive, and the inspiration to know that we can do those things, too.

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