Do EU job boards have the burden of proving they don’t discriminate against protected groups?

We published an article a few weeks ago about the impact of the European Union Artificial Intelligence Act on job boards, applicant tracking systems, and other talent acquisition technology that ranks, scores, and matches candidates against job openings.

Today, we’re going to spend a little time discussing not just whether the EU AI Act applies to job boards and what it requires, but whether it is the EU that has the burden of proving discrimination or the job board that must prove that it doesn’t. The distinction might seem trivial to some, but regulatory and other legal matters often turn on which party has the burden of proof.

We reached out to Bogdan Nicholas, cofounder of VINspectorAI, an AI-powered vehicle history platform that helps used car buyers instantly check VIN data, detect fraud, and avoid costly mistakes before they buy. The perspective that he brought was a little different from the other experts we approached.

According to Bogdan, “systems that automatically filter out candidates below a certain score threshold face the toughest scrutiny. Denying someone the ability to even apply based on an opaque AI score could violate the Act’s requirements around explainability and non-discrimination. If a job board can’t demonstrate how its scoring works and that it doesn’t discriminate against protected groups, it risks enforcement action once the employment provisions take full effect”.