January 25, 2022

Volume XII, Number 25

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January 24, 2022

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EEOC Prepares to Tackle Artificial Intelligence and Algorithmic Bias

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.

© 2022 Proskauer Rose LLP. National Law Review, Volume XI, Number 319
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About this Author

Joseph C O'Keefe Labor Employment Attorney Proskauer Rose Law Firm
Partner

Joseph C. O'Keefe is a partner in the Labor & Employment Law Department.

For more than 25 years, Joe has litigated employment disputes of all types, on behalf of employers, before federal and state courts, arbitral tribunals (e.g. FINRA and AAA), and state and federal administrative agencies. Joe has litigated employment-related lawsuits alleging discrimination and sexual harassment, whistleblowing, non-competition/trade secret matters, compensation disputes, breach of contract, defamation, fraud and other business related torts. Joe’s practice includes representing clients...

212.969.3019
Edward C. Young, Proskauer Rose, Harassment Lawyer, Labor Rights Attorney
Associate

Edward C. Young is an associate in the Labor & Employment Law Department. He represents companies nationwide in a broad range of employment issues, including discrimination, retaliation and harassment claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act and the Family Medical Leave Act, as well as other federal and state employment statutes and various common law torts. In addition, Eddie represents employers in trade secret matters and challenges to the independent contractor status of workers.

...

312-962-3595
Tony S. Martinez Labor & Employment Attorney Proskauer Rose Law Firm
Associate

Tony Seda Martinez is an associate in the Labor & Employment Law Department and assists clients in a wide range of labor and employment law matters.

Prior to joining Proskauer, Tony attended Rutgers School of Law. While in law school, he interned for the United States Attorney’s Office, the Honorable Judge Esther Salas of the United States District Court for the District of New Jersey, and the Honorable Chief Justice Stuart Rabner of the Supreme Court of New Jersey. In addition, Tony served as a senior notes and comments editor of the Rutgers Law Review...

212.969.3014
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