In a landmark move, the Equal Employment Opportunity Commission (EEOC) unveiled groundbreaking guidance on May 12, 2023, aimed at defining key terms and equipping employers with essential knowledge when utilizing advanced technology tools, particularly artificial intelligence (AI), to make critical employment decisions. This guidance will impact all employers with on-site employees operating within the United States.
The EEOC’s comprehensive guidelines prompt employers to carefully review their processes if they employ or plan to utilize algorithmic decision-making tools, such as AI. Specifically, they are encouraged to assess their procedures based on the seven thought-provoking questions posed by the EEOC in the guidance document.
Furthermore, companies that employ advanced technology tools through third-party vendors are advised to engage in a dialogue with their vendors regarding the potential for substantially lower selection rates pertaining to the protected characteristics outlined in Title VII. It is vital for employers to ascertain whether these tools are deemed business necessities or if alternative options are available to mitigate any adverse effects. Employers should remain cautious, as they bear ultimate responsibility for any disparate impact or treatment discrimination that may arise from the utilization of these tools, regardless of vendor assessments.
To ensure compliance with these guidelines, the EEOC suggests implementing a process for routinely auditing AI-related tools in collaboration with experienced legal counsel. Employers are urged to remain vigilant, proactively examining the potential for disparate impact or treatment discrimination stemming from these innovative technologies.
The EEOC’s new guidance sheds light on the use of computer-based tools, particularly AI, in employment decisions. Examples of such technologies include resume scanners that prioritize applicants based on keywords, certain productivity monitoring software, video interviewing software that evaluates candidates based on facial expressions, and testing software that provides job fit scores.
It is essential to note that this guidance aligns with established principles outlined in Title VII statutory provisions and previous guidance, emphasizing the importance of fair practices when incorporating advanced technologies into the workplace.
The EEOC’s guidance, unveiled as part of their recent release, focuses on the application of AI in various employment aspects, including recruitment, hiring, retention, promotion, transfer, performance monitoring, demotion, and dismissal. It emphasizes that any adverse impact on individuals based on race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), or national origin could run afoul of federal anti-discrimination laws.
While the EEOC’s guidance specifically addresses federal anti-discrimination laws and protected classes, it is crucial to note that state and local anti-discrimination laws may provide broader protections. Additionally, the EEOC sheds light on the four-fifths rule as a potential tool for assessing AI’s impact. However, the guidance emphasizes that this rule should not be the sole measure for determining bias and may not always be appropriate in certain circumstances. Employers are encouraged to refer to questions 5 and 6 in the EEOC guidance for a more comprehensive understanding of this rule.
Importantly, employers must be aware that they bear responsibility for the outcomes associated with AI tools used for employment purposes, even if these tools are designed and administered by third-party vendors. While employers may not be able to hold vendors accountable for inadvertent discrimination caused by the tool, they are still liable for any resulting actual or disparate impact or treatment discrimination.
In light of these considerations, the EEOC strongly urges employers utilizing AI tools to proactively engage in self-audits and regular testing of employment-related AI tools. These measures are essential to identify and address any potential instances of actual or disparate impact or treatment discrimination that may arise.
By embracing a proactive approach and conducting regular self-audits, employers can ensure compliance with anti-discrimination laws and create a fair and inclusive environment for their workforce.
The EEOC’s guidance marks a pivotal moment in the regulation of AI in employment, emphasizing the importance of responsible AI implementation and continuous monitoring to safeguard against discrimination. Employers are encouraged to familiarize themselves with the guidance and take proactive steps to uphold the principles of equality and fairness in their AI-driven employment practices.
Disclaimer: This news article is for informational purposes only and should not be construed as legal advice. Please consult with legal professionals to understand how the EEOC’s guidance may apply to your specific circumstances. Employers are advised to consult with legal professionals for guidance on their specific circumstances and ensure compliance with applicable anti-discrimination laws.