Our Point Of View

Video-based assessment carries unnecessary legal risk

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April 17, 2024By Paul Boatman, Ph.D.

Video-based resumes and interviews have risen in popularity as applicant assessment formats in recent years. Many believe implementing these types of assessments will increase candidate flow and improve candidate experience. While this may seem to be a fun and innovative approach to the application process, we recommend that companies carefully consider the legal ramifications of such tools.

What is video-based assessment?

Video-based assessment can refer to video resumes, which applicants submit to prospective employers—often instead of a traditional text-based resume, or it can refer to video-based interviews, in which applicants record video responses to question prompts. Statistics about the use of video-based assessments are difficult to locate since pre-recorded video interviews tend to be lumped in the same category with live interviews conducted virtually, but it appears that approximately 60% of employers use some form of video-based interviewing. Though far less common, some video-based interviewing technologies leverage artificial intelligence to “score” candidate responses.

Legal considerations

The EEOC has outlined some important legal considerations and risks associated with this approach. Candidates are protected from discrimination based on race, religion, national origin, sex, color, age, and disability status. A video application would provide the hiring organization with information on many of these categories that would not be otherwise available through a text-based resume or other types of online assessment. While gathering this information is not illegal, it is illegal to base any employment-related decisions on it. The EEOC specifically calls attention to the fact that bias may not be conscious and can impact the hiring process unintentionally. Regardless of intention, the act of discrimination is illegal in the hiring process and the more opportunities for biased decision making, the more liability is created for your organization.

In addition to discrimination based on visible features, legal experts argue the possibility of discriminating against those that may not be as tech-savvy or have limited access to good quality video equipment, which can often be aligned with age or minority status (Source: LiveAbout). You can be creating an unequal ‘playing field’ for your applicants, unintentionally eliminating a sub-population that has less access to the tools needed for such an application.

Many argue that during in-person interviews, this same type of information on race, sex, etc. becomes available and that videobased assessments are no different. This is true, and the same precautions apply any time an applicant’s membership in a protected class might be made apparent. However, in-person interviews often occur as a second or third phase of the hiring process, after a more “blind” step such as a text-based resume and/or assessment has occurred. In these cases, the implicit bias that can occur when seeing a person can be more easily avoided since the person’s qualities and qualifications have already been determined. Given that video-based assessments often take place before any other screening has occurred, many legal experts believe that they are not worth the risk.

Risks of video-based assessments

  • Demographic discrimination
  • Discrimination based on disability
  • Barriers due to lack of technical savvy 
  • Inaccessibility due to equipment requirements
  • Time-consuming

Other considerations

In addition to some legal risks, there are other potential pitfalls to video-based assessments. First, candidates often won’t be able to tailor their information to your organization specifically given the time intensive nature of creating the video. Additionally, the time spent reviewing video assessments tends to increase with the added length of a video. Most recruiters do not spend 2-5 minutes per resume during an initial review when working with traditional applications. However, many videos tend to be around that length, increasing the recruiter’s workload.

In sum, at Infor Talent Science, we believe that video-based assessments put organizations at risk for discrimination complaints that are difficult to defend. We believe limiting your legal risk is more important than implementing trendy assessments. Additionally, the argument for time savings may not actually be true for both applicants and recruiters alike.

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