The Future of Hiring: Ensuring Fairness in AI-Driven Recruitment

Many organizations are turning to generative artificial intelligence (“AI”) to streamline their recruitment processes. However, as with any new technology, there are risks and challenges that employers and HR professionals must consider. The use of AI in recruitment not only raises important questions about its impact on human rights but also requires employers to stay ahead of legislative changes and address potential challenges from unions.

The Role of AI in Recruitment

The use of AI in recruitment is appealing due to its ability to streamline time-intensive processes. AI systems can sift through hundreds or thousands of resumes in minutes, automatically ranking candidates based on criteria established by the organization. AI tools can also assist with candidate matching, interview scheduling, and even conducting preliminary interviews, allowing HR professionals to focus on more strategic tasks.

Employers looking to incorporate AI into their recruitment strategy should carefully consider what types of tools would best suit their needs. For example, AI-driven platforms can be used for resume screening, psychometric testing, or even video interviews. While AI offers clear benefits, it is important for HR professionals to reflect on the platform they choose—what data is being collected, how it is used, and whether the platform aligns with the company’s values and objectives.

Human Rights Concerns in AI-Driven Recruitment

One of the most pressing issues with AI in recruitment is the potential for discrimination. Pursuant to Ontario’s Working for Workers Four Act, 2023 [WFW4A], beginning January 1, 2026, employers will be required to disclose in publicly advertised job postings whether AI is being used in the recruitment process. This means candidates will know upfront that their application may be subject to an AI system’s analysis.

The use of AI in recruitment carries the possibility of introducing discriminatory hiring practices because AI systems can favor certain groups or inadvertently exclude others based on protected characteristics like gender, place of origin, or age. Human rights claims can be successful if any part of a hiring decision is based on protected human rights grounds—even if this played only a small role in the broader decision, and if hiring managers were unaware that an AI system considered those characteristics. These claims will be difficult for employers to defend, as it may be hard to prove exactly what factors were considered by the AI system, particularly if the system lacks transparency about its processes.

Labour Relations Considerations

The introduction of AI into recruitment processes could quickly become a point of negotiation during collective bargaining. Common union concerns could include the transparency of AI’s decision-making processes, its potential to be biased, and how candidate data is being handled. Employers should prepare for these discussions by understanding the questions unions may have, prepare clear answers to these questions and be ready to demonstrate what steps have been taken to ensure that AI systems are fair, transparent, and respectful of privacy.

Risk Mitigation Strategies

Given the potential risks of discrimination, employers must take proactive steps to mitigate these concerns and ensure that AI systems used in hiring are as impartial as possible. Key strategies include:

Addressing Discrimination Risks: Ensure that AI systems are designed to avoid bias to ensure hiring processes remain fair and equitable for all applicants. AI prompts should be carefully drafted to include instructions explicitly instructing AI not to consider certain characteristics (e.g., gender, place of origin, religion) that are protected by applicable human rights legislation.

Practical Risk Management: Establishing transparent and documented processes for how AI is used in hiring can be essential in defending against discrimination claims. Organizations should be prepared to demonstrate how their AI system’s decision-making is fair and not influenced by characteristics protected by human rights legislation, in the event that a discrimination claim arises.

Stay Informed: Organizations should closely track legislative developments regarding the use of AI in recruitment to understand and fulfill their obligations.

As the use of AI in recruitment becomes more prevalent, it presents new challenges for employers and HR professionals. With approaching disclosure requirements introduced with the WFW4A, employers must be prepared to adapt and ensure their AI systems align with both legal standards and human rights considerations. By taking these steps, employers can leverage AI’s full potential while safeguarding against liability and ensuring that their recruitment practices remain fair and transparent.

Written by: Joel Smith, Partner, and Devin Landry, Articling Student, Williams HR Law LLP