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LAW AND
THE WORKPLACE


EEOC PREPARES TO TACKLE ARTIFICIAL INTELLIGENCE AND ALGORITHMIC BIAS

By Joseph O’Keefe, Edward Young and Tony S. Martinez on November 15, 2021 Posted
in Workplace Policies and Procedures

On October 28, 2021, Equal Employment Opportunity Commission (“EEOC”) Chair
Charlotte A. Burrows announced that the agency is launching an initiative to
ensure that artificial intelligence (“AI”) used at all stages of the employment
cycle comply with federal anti-discrimination laws.  The EEOC also issued a
press release on that same day outlining the agency’s plans under the new
initiative.

The announcement comes as employers are increasingly using AI and other
algorithmic tools to automate their recruiting process.  From using “chatbots”
to communicate with job applicants to schedule interviews, ask screening
questions, and even using AI to review and screen resumes, the proliferation of
these tools has steadily grown in recent years.

As these AI tools have enjoyed wider adoption, researchers have raised concerns
that this technology has the potential to generate biased or discriminatory
results due to, inter alia, its reliance on datasets that may reflect past
biases and biases which may be embedded in the coding process.  In response to
these concerns, as early as October 2019 the EEOC was investigating at least two
cases claiming that algorithms underlying AI tools used by employers were having
a discriminatory impact.  Similarly, on December 8, 2020, several U.S. senators
sent a joint letter to then-Chair of the Equal Employment Opportunity Commission
inquiring about whether the agency had ever used its authority to “investigate
and/or enforce against discrimination related to the use of hiring
technologies.”  Likewise, the letter also inquired about, among other things,
 the agency’s authority “to study and investigate the development and design,
use, and impacts of hiring technologies absent an individual charge of
discrimination.”  As recently as September 1, 2021, EEOC Commissioner Keith
Sonderling stated in an interview that employers using these AI tools require
guidance from the EEOC to combat the risk of potential discrimination.

Per the EEOC’s press release, the agency plans to:


 * “establish an internal working group to coordinate the agency’s work on the
   initiative;”
 * launch a series of “listening sessions with key stakeholders” regarding AI
   tools and their impact in employment;
 * collect information regarding the “adoption, design, and impact of hiring and
   other employment-related technologies;”
 * “[i]dentify promising practices;” and
 * publish technical assistance to “provide guidance on algorithmic fairness and
   the use of AI in employment decisions.”

Further, EEOC Chair Burrows commented on the initiative, noting that “[w]hile
the technology may be evolving, anti-discrimination laws still apply.  The EEOC
will address workplace bias that violates federal civil rights laws regardless
of the form it takes and the agency is committed to helping employers understand
how to benefit from these new technologies while also complying with employment
laws.”

While governments at all levels have slowly begun to regulate the use of this
technology by employers, the EEOC’s initiative will be the first sweeping
attempt by the agency to examine the technology and enforce compliance with
currently existing anti-discrimination laws such as Title VII of the Civil
Rights Act, the Americans with Disabilities Act, and the Age Discrimination in
Employment Act.  Employers utilizing these new tools should carefully audit them
to ensure that this technology is not creating discriminatory outcomes. 
Likewise, employers must remain closely apprised of any new developments from
the EEOC and local, state, and federal legislatures and agencies as the trend
toward regulation continues.

We have previously blogged about the risks associated with the use of AI in
employment.  For more information, please visit our prior works here and here.

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