ACLU Files FTC Complaint Against Major Hiring Technology Vendor for Deceptively Marketing Online Hiring Tests as “Bias Free”

WASHINGTON — The American Civil Liberties Union has filed a complaint with the Federal Trade Commission (FTC) against Aon, a major hiring technology vendor, that is deceptively marketing widely used online hiring products as “bias-free” and able to “improve diversity” even though the products are likely to discriminate against job seekers based on their race or disability, in violation of consumer protection laws.

Two 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 across many job roles. Yet like many similar products on the market, these tools assess general personality traits, such as positivity, emotional awareness, and liveliness, that are not clearly job related or necessary for most jobs and are directly linked with core aspects of the medical understanding of 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. 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.

Aon also broadly markets a third product, a gamified cognitive ability assessment called gridChallenge, despite data showing racial disparities in performance on these types of assessments. Cognitive ability tests have long been shown to disadvantage Black job candidates and other candidates of color and may also unfairly exclude individuals based on disability.

The ACLU also filed EEOC class-wide charges in late 2023 against Aon and an employer that uses Aon’s assessments alleging discrimination based on race and disability on behalf of a biracial (Black/white) autistic job applicant and other similarly situated applicants who were required to take Aon assessments as part of the employer’s hiring process. The ACLU filed the EEOC charges together with co-counsel Winston Cooks, LLC.

Statement from Olga Akselrod, senior staff attorney, ACLU Racial Justice Program:

“Aon falsely claims that its assessments are bias-free, and yet its assessments carry an unacceptably high risk of screening people out based on who they are and not whether they can do the job, particularly on the basis of race or disabilities such as autism or mental health disabilities. We’re putting vendors on notice that they can be liable for their discriminatory products and deceptively marketing them to employers.”

Statement from Larkin Taylor-Parker, legal director, Autistic Self-Advocacy Network:

“Autistic and other disabled job applicants face significant barriers to employment already and these types of assessments only exacerbate the problem. These assessments not only fail to accommodate the diverse needs of many applicants with developmental disabilities but also perpetuate discrimination based on disability and other traits.”

Statement from Brian Dimmick, senior staff attorney, ACLU Disability Rights Program:

“Employers have been burying their heads in the sand regarding their own risk of liability, and the ACLU’s legal actions should make employers think twice about using these products. Employers should not use assessments that carry a high risk of discrimination based on disabilities, race, and other protected characteristics and have a legal obligation to thoroughly vet any assessments they use to ensure that they comply with anti-discrimination laws.”

Statement from Maria Town, President and CEO, American Association of People with Disabilities:

“People with disabilities and people of color already experience significant barriers in the job market and in the workplace. Aon’s employment tools exacerbate this discrimination under the deceptive guise of reducing bias. This complaint makes clear that vendors cannot make false promises about their tools and even this emerging technology must still comply with longstanding federal civil rights protections.”

The ACLU will continue to closely monitor the actions of employers and vendors to ensure that they adhere to anti-discrimination laws and consumer protection laws to uphold the rights of all individuals in the workplace.

More information about the case can be found here