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EEOC Monitoring Use of AI in Employment Decisions

By Douglas Lipsky

More employers are currently relying on artificial intelligence (AI) to screen job candidates and make employment decisions; however, there are inherent risks in tech-based hiring tools, including automating biases and the potential for discrimination. In response, the Equal Employment Opportunity Commission (EEOC) recently announced a new initiative to ensure that AI and other tech-based hiring tools comply with federal civil rights laws. 

The Backdrop

The EEOC has been examining the issue of AI and big data in hiring and other employment decisions since 2016. But the new initiative comes after a November 2020 letter, authored by Congressional lawmakers, asking the EEOC to look into the use of AI, machine learning, and other technologies that may result in discrimination.

There is also a growing consensus among employment lawyers, academics, and workers’ rights groups that automated candidate sourcing, resume screening, automated video interviews, and other technology may introduce or exacerbate unlawful bias if not used properly. 

Despite the cost benefits of AI tools, there is the potential of misuse, resulting from the introduction of human bias at any stage of the automated hiring process—from design to implementation, to the interpretation of results. 

If the data used to develop algorithms to guide their analysis of candidates lacks diversity, the algorithm may reinforce institutional bias, which can lead to claims of disparate impact discrimination. This form of discrimination occurs when a seemingly neutral employment policy or practice has an adverse impact on a candidate or employee who is a member of a protected class.

Although the EEOC is aware of these issues, the agency has yet to issue guidance on the use of AI in employment decisions.  In fact, the EEOC’s Uniform Guidance on Employee Selection Procedures was adopted in 1978, long before the advent of artificial intelligence. 

How is technology changing the way employment decisions are made? 

The EEOC’s new initiative is aimed at answering this question and guiding employers in ensuring these technologies are consistent with federal equal employment opportunity laws. The agency’s new initiative is intended to:

  • Establish an internal working group to coordinate its work on monitoring AI tools
  • Launch a series of listening sessions with key stakeholders about the employment ramifications of AI
  • Collect information about the adoption, design, and impact of tech-based hiring tools
  • Identify potential best practices
  • Issue technical guidance on the use of AI in employment decisions

Whether the EEOC’s initiative will result in a charge (an agency-initiated investigation unrelated to an employee’s claim of discrimination) or enforcement action remains to be seen. In the meantime, if you believe you have been discriminated against in the employment process whether by an actual recruiter or a machine, talk to an employment lawyer.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.