December 6, 2022

Volume XII, Number 340


December 06, 2022

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December 05, 2022

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Senators’ Letter to EEOC Signals Scrutiny of AI Bias

Ten U.S. senators are asking the U.S. Equal Employment Opportunity Commission to hone in on employers’ use of artificial intelligence (“AI”), machine-learning, and other hiring technologies that may result in discrimination.

The group of senators—Michael Bennet (D-CO), Cory Booker (D-NJ), Sherrod Brown (D-OH), Elizabeth Warren (D-MA), Catherine Cortez Masto (D-NV), Chris Coons (D-DE), Ron Wyden (D-OR), Tina Smith (D-MN), Chris Van Hollen (D-MD), and Jeff Merkley (D-OR)—jointly penned a December 8, 2020 letter to EEOC Chair Janet Dhillon. The letter urges that EEOC is responsible for combatting discrimination resulting from the use of hiring and other employment technologies. The senators voice concern about a number of hiring technologies, including:

  • “[T]ools used in the employee selection process to manage and screen candidates after they apply for a job”;

  • “[N]ew modes of assessment, such as gamified assessments or video interviews that use machine-learning models to evaluate candidates”;

  • “[G]eneral intelligence or personality tests”; and

  • “[M]odern applicant tracking systems.”

The lawmakers recognize that “hiring technologies can sometimes reduce the role of individual hiring managers’ biases,” but that “they can also reproduce and deepen systemic patterns of discrimination reflected in today’s workforce data.”

According to the senators, this risk of bias in technologies, combined with the currently high watermark in the unemployment gap between Black and Latino workers and their White counterparts, requires the EEOC to “conduct robust research and oversight of the industry and provide appropriate guidance.” The letter calls on the EEOC to provide information about its authority and capacity to investigate and audit the effects these technologies may have on protected classes and whether it has taken enforcement actions against employers who utilize discriminatory hiring assessments or processes.

This is not the first time high-profile legislators have expressed concern about the use of AI in the workplace. In 2018, a group of senators (including then-Senator, now-Vice President-elect, Kamala Harris) penned a similar letter to the EEOC, raising similar concerns with the use of facial recognition technologies in the workplace. The senators expressed doubts about whether the use of such technologies would reduce human biases or “actually amplify those biases.” Vice President-elect Harris is no stranger to the intersection of AI and policy, having dealt with technology policy issues both in Congress and in state and local politics in California.

This latest letter to the EEOC and the attention of the White House undoubtedly signal increased enforcement and regulatory activity on the horizon for employment-related uses of technology in the hiring and employment process. Employers should act now to evaluate their current and planned use of AI-based hiring and employment tools for potentially disparate impact on protected classes of workers. The scrutiny imposed on these tools by government agencies and lawmakers will only increase in 2021 and beyond.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XI, Number 19

About this Author

Madalyn K. Doucet Labor and Employment Attorney Hunton Andrews Kurth

Maddie represents employers in all phases of the employment relationship, advising clients on compliance with federal and state laws and representing them in labor and employment disputes.

Maddie’s practice focuses on providing effective advice and efficient solutions to employers facing a wide range of labor and employment issues. From the initial employment application to the end of the employment relationship, she counsels clients on compliance with laws and regulations, and defends them when necessary in investigations, employment and labor...

Kevin J. White Employment Lawyer Hunton AK

Kevin co-chairs the firm’s labor and employment team and  has a national practice that focuses on complex employment litigation and employment advice and counseling.

In particular, Kevin has extensive experience representing clients in the retail, energy and financial services industries in discrimination class action litigation, governmental agency systemic discrimination investigations, and wage and hour litigation. Other significant aspects of his practice include conducting internal investigations, advising clients regarding executive...

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