guidance

High-risk § 3.4.2

Point 4(a): AI systems intended to be used for the recruitment or selection of natural persons

Official source ↗

(243)

Point 4(a) of Annex III classifies as high-risk AI systems intended to be for the recruitment or selection of natural persons, in particular to place targeted job advertisements, to analyse and filter job applications, and to evaluate candidates.

(244)

The classification of AI systems intended to be used in recruitment and selection as high-risk is justified by the fact that those processes constitute the principal entry point into the labour market. Decisions taken at this stage can condition an individual’scareer prospects and access to livelihoods. At the same time, the structural power asymmetry between internal and external recruiters and candidates, combined with the high degree of information held by employers on the candidate and contracting parties for self-employed, the job requirements, and the labour market creates a context in which ensuring the protection of job applicant’s rights is essential.

(245)

For an AI system to be classified as high-risk pursuant to point 4(a) of Annex III , the activity for which it is intended to be used should relate to or impact the substance of the recruitment process: covering preparatory steps (special advertising, prospecting, pre-application screening) and the selection process (shortlisting, grading, ranking, or testing of candidates). The notions of ‘recruitment” and ‘selection” require a functional interpretation, since they are partly overlapping but not identical.

i. The notion of ‘recruitment’

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Recruitment constitutes the processof preparing the constitution of a new work-related relationship, commencing already with the identification and attraction of potential applicants , and continuing until the conclusion of a contract, if applicable. This encompasses early-stage prospection activities, including the placement of targeted job advertisements (see point iii below), the identification of potential candidates in databases, or other informal approaches undertaken prior to the launch of a formal procedure42. AI systems may also be intended to be used in recruitment, for instance, for the screening of CVs, candidate sourcing, or applicant ranking.

(247)

AI systems may also analyse hiring data to predict which candidates are most likely to succeed based on skills and past performance or to help generate job descriptions. These may or may not fall within the scope of point 4 of Annex III depending on whether the system truly pertains to the domain of recruitment in a manner that impacts in substance career prospects or workers’ rights . Where that is the case, the system may be exempted from high-risk classification if it fulfils any of the conditions in Article 6(3) AI Act. To assess this, it is key to examine the AI system’s potential impact on prospective or actual candidates’ employment and career opportunities, or the risk of discrimination43. AI system generating job descriptions An AI system exclusively generates job descriptions based on a list of tasks to be carried out and a set of necessary qualifications and skills previously defined by a human recruiter . AI tools of this type can fall within the high-risk use case of point 4 of Annex III, ifit is within their intended purpose to play a role in the recruitment process in a manner that affects applicants’ prospects. However, the specific AI system referred above should be considered as performing a narrow procedural task (Article 6(3)(a)) as this specific use case poses only limited risks and does not meaningfully influence the application process and, hence, should be exempt from the high-risk classification. In contrast, an AI system of the same type, but where the AI system itself generates the necessary qualifications and skills based on a high-level description of the job position orthat has an additional function allowing it to substantially affect the application process by evaluating the candidates’ CVs against the job description that it created and to make recommendations of suitability on this basis cannot be considered as falling within the filter and should be classified as high-risk.

(248)

The notion of recruitment includes onboarding processes where the outcome of an AI system performing such a process may affect access to work, in particular where onboarding constitutes a relevant aspect of the recruitment process and not the first step after its conclusion ( e.g. when the employer performs checks on preliminarily hired workers) . Recruitment is concluded when the worker is understood to be hired and dismissal procedures must follow through specific channels foreseen to that effect.

ii. The notion of ‘selection’

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Selection has two distinct meanings. On the one hand, it reflects the fact the high-risk area of Annex III, point 4 also encompasses ‘access to selfemployment’. While such processes might not be - ‘recruitment’ in the strict sense, natural persons who are selfemployed may also undergo a-selection process before they are contracted. Therefore, AI systems used in the selection of self-employed persons by their contracting parties should fall within the scope of Annex III, point 4(a). On the other hand, ‘selection’ also refers to the specific stage in recruitment where candidates are assessed, filtered, and chosen for advancement or hiring. It covers activities such as the analysis of applications, automated shortlisting, scoring, ranking, or assigning predictive scores of job suitability.

iii. Place targeted job advertisements

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Although point 4(a) of Annex III, lists examples of selection, such as ‘analysing and filtering job applications’ and ‘evaluating candidates,’ this list should not be seen as being exhaustive44 . The explicit inclusion of targeted job advertisements in point 4(a) of Annex III follows from the fact that the placement of advertisements that are algorithmically tailored to reach certain groups of individuals determine who becomes aware of, and who is encouraged to apply for , specific vacancies. Where an AI system placing targeted job advertisements relies on profiling, it should always be considered high-risk, given the exclusion inArticle 6(3), last subparagraph, AI Act of AI systems based on profiling from benefiting from the filter mechanisms contained in that provision. Even where such an AI system does not involve profiling, the system should be considered high-risk, if it meaningfully conditions access to employment opportunities or can lead to a risk of discrimination.

(251)

A job advertisement must be understood to represent an active indication that an employer is seeking candidates for a concrete vacancy. Employer branding or generic advertisements related to the firm, which do not in practice relate to a vacancy, fall outside the use case listed in point 4(a) of Annex III.

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Moreover, where the personalisation of the persons to whom an advertisement is shown results directly from non-discriminatory, objective and reasonable criteria45 that are inherent requirements of the job description, it may be excluded from the scope of ‘targeted job advertisements”. Likewise, the placing of job advertisements by AI system that are based exclusively on contextual elements (contextual targeting) , such as content of the location where the advertisement is placed (e.g., website) and that are not directly related to specific natural persons or groups of natural persons , should also be considered to fall outside the use case listed in point 4(a) of Annex III . In such a case, the target audience of the location will be the same as the relevant audience that the advertiser is trying to reach to fill a vacancy . However, the job advertisement can still be shown to anyone who accesses the location (i.e., there is no exclusion).

iv. Analyse and filter job applications

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The terms ‘to analyse and filter job applications’ used in point 4(a) of Annex III should be understood broadly and not as limiting the use case to AI systems that always perform both functions simultaneously. A functional interpretation is required: where an AI system merely analyses applications in a descriptive sense (such as converting file formats or classifying degrees into standard categories without applying evaluative weight), it may be considered to perform a preparatory task within the meaning of Article 6(3)(d) AI Act. In contrast, AI systems that analyse job applications with an effect that may result in a restriction of the applicant in accessing certain job opportunities, for example by producing suitability scores, assessing compatibility of a candidate’s profile or experience with the selection criteria or job description , or producing competence profiles that condition shortlisting, fall within scope of the high-risk use case listed in point 4(a) of Annex III . In this case, ‘analysis” and ‘filtering” form part of a continuum: analysis that influences access to later stages operates de facto as filtering, and therefore falls within the scope of Annex III, point 4(a).

v. Evaluate candidates

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The terms ‘to evaluate candidates’ used in point 4(a) of Annex III must also be understood broadly. Evaluation refers to any assessment of a candidate’s (including self-employed) suitability, merit or potential, whether through scoring, ranking, predictive modelling, or qualitative judgements derived from data inputs. The provision does not require that the evaluation carried out by the AI system directly determines the hiring outcome . It suffices that it appreciably influences the decision-making process, for example by laying out shortlists , prioritising certain applicants or scoring assessments within the context of the recruitment or selection process that may result in advantages for certain candidates . AI tools that merely present factual information without involving evaluative weight (such as software displaying unaltered employment history) may fall outside scope if they do not generate assessments of suitability.

a) Practical examples of AI systems falling within the high-risk use case of point 4(a)

b) Practical examples of AI system falling outside the high-risk use case of point 4(a)

c) Practical examples of AI systems falling within the use case but exempted under the filter mechanism of Article 6(3)

  1. This understanding is consistent with the case law of the Court of Justice of the European Unionwhichconfirms that EU equality law applies already at the stage of access to employment. In Case C-54/07,Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV ,EU:C:2008:397and subsequently in Case C-507/18,Associazione Avvocatura per i diritti LGBTI ,EU:C:2019:922the Court held that discriminatory statements by an employer concerning prospective employees constituted discrimination, even in the absence of a formal recruitment procedure.
  2. Forinstance, job descriptions or advertisements may have a strong influence on who will be successful in the recruitment procedure, especially if they set out the qualifications required for the job and/or the selection criteria. Drafting them based on biased data, such as past recruitment patterns, can increase the risk of discrimination for disadvantages groups.
  3. The applicationof point 4(a) is limited by the intended purpose of the AI system, as such AI systems intended to select or evaluate tender offers or responses to requests for proposals will not be classified as high-risk just because they are theoretically capable of se lecting or evaluating an offer from a self-employed sole proprietor. However, to fall out of scope of the high-risk classification, the use of the AI system may not result in a de facto selection (or exclusion) of the self-employed person (instead of the proposal) nor an evaluation of the self-employed person (instead of the proposal).
  4. This would be the caseif the requirements stem from agenuine and determining occupational requirement whose absence may make it impossible for the candidate to perform the functions stated in the job description, and not when it is about a preferred characteristic, or a specific profile that while desirable does not have a direct and objectivelink to the required qualifications/skills.In assessing the mentioned non-discriminatory, objective and reasonable criteria, it is important to consider the EU non-discrimination acqui s, including Article 4 of Directives2000/78/EC and 2000/43/ECand Article 14(2) of Directive 2006/54 /ECof the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) , OJ L 204, 26.7.2006, pp. 23–36.
  5. Oral responses could be evaluated, for example, through an AI system capable of processing video-and audio and interactingwith the applicant through an avatar.