A number of vendors are promoting artificial intelligence-based software for use in applicant screening and hiring. These tools promise to automate parts of the hiring process and to streamline the review of applicant qualifications and suitability for the position. This software has already prompted concerns from the Equal Employment Opportunity Commission about possible bias against persons in legally protected classes. Another concern involves whether these AI programs fall under the definition of lie detectors under federal and state law.

Last week, a federal court in Massachusetts refused to dismiss a class action lawsuit filed against the CVS pharmacy chain. The suit alleges that CVS uses AI-enhanced software for conducting automated interviews and screening applicants. The plaintiffs say that the software’s vendor represents that the program can make credibility judgments about applicants’ answers to questions posed during the hiring process based on word choice, facial, or body movements. The lawsuit alleges that this constitutes use of a lie detector in violation of state law.

This suit raises the potential for similar claims across the U.S. In states with no specific law governing lie detector use in hiring, the Employee Polygraph Protection Act (EPPA) may provide a federal claim in situations where AI-powered software is used to exclude applicants based on the accuracy of information provided. EPPA’s prohibition against use of lie detectors in hiring applies to devices other than polygraphs. The theft investigation and other exceptions to this prohibition, however, appear limited to use of polygraph machines.

EPPA was adopted in 1988 and clearly was never written with AI tools in mind. Unless Congress chooses to update the law’s protections, federal courts may be called upon to determine whether this legislation applies to developing technologies that claim the ability to tell when an applicant or employee is being truthful.

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