AI and employment law: Avoiding age discrimination in layoffs

Before implementing a reduction in force, employers often prepare an internal employee census listing job titles, compensation and available demographic information to compare who is being laid off and who is retained, helping identify potential disparate impact and reduce legal risk. Christopher S. Mayer, J.D., an employment law specialist with the firm Frier Levitt, discusses legal requirements and avoiding legal liability when using AI in human resources.

Medical Economics: If an employer is not allowed to ask a person's age when they apply for a job to avoid discrimination, how are they able to avoid potential liability when you're making a layoff, if you're not totally sure of a person's age?

Christopher S. Mayer, J.D.: That's a good question. Employers do have access to the information. They have access to the birth dates of their employees, and most employers have to do annual EEO reporting, so it requires them to gather some of that information. Although a lot of the information, folks don't have to provide it. It's optional, like race and things like that. So you don't always have all the information. Age is one that employers do tend to have all of it. You do know the ages of your workforce, just because on certain pre-employment and early employment documentation, you have to disclose your age, but other categories, you don't necessarily know it. In that instance, it can be a problem. What you have to do when you're doing a layoff, and if it's a large number of employees, you put together what's called an employee census. You're going to prepare a chart of everybody that's included in the layoff, by name, by job title, by compensation. You do all those things, and those things are sometimes behind the scenes as factors. But then whatever statistical information you have about them, whether it's race, national origin, you fill out those categories. If somebody's out on a disability leave, you check that box and you put it all in there, and that's important, so that you can see it all together. But if you don't know it, you leave it blank. You can sometimes try to guess, but that's not always a good system, as you can imagine. But it is important to gather that information together, and then you want to see the people who are not being impacted by it. If you're looking at job criteria and you're trying to eliminate half of the people in that job category, and you've picked half, you know whether they're poor performers or what have you got to see who is staying. By the same criteria you need to compare and see and that you can present to an attorney or a consultant who will crunch the numbers on that too, if it's too many people involved. If it's a smaller scale, I think an employer can do that themselves.