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EEOC releases guidance on AI and Title VII

June 1, 2023

By Alan C. Blanco, Esquire

The Equal Employment Opportunity Commission (EEOC) released a technical assistance document, “Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964,” which is focused on preventing discrimination against job seekers and workers. The document is part of the EEOC’s Initiative on Artificial Intelligence and Algorithmic Fairness (the EEOC Initiative).

The EEOC’s Initiative has been and will continue to examine more closely how technology is fundamentally changing the way employment decisions are made. The EEOC has noted that employers now have a wide variety of algorithmic decision-making tools available to assist them in making employment decisions, including recruitment, hiring, retention, promotion, transfer, performance monitoring, demotion, dismissal, and referral, and that use of these tools can have illegal discriminatory effects.  The EEOC’s Initiative aims to educate and guide applicants, employees and employers in ensuring that these technologies are used fairly, consistent with federal equal employment opportunity laws. The latest release may be read together with a release from last year entitled “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees.”

Title VII Scope as related to AI and Employment Law

Title VII prohibits employment discrimination on the basis of sex, gender, race, color, age, religion, or national origin. Most commonly, the focus of Title VII is intentional discrimination, or “disparate treatment” in employment, for example when an employer decides to terminate an employee because of sex.  Title VII can also prohibit employment practices that have a “disparate impact” based on race, color, religion, sex, or national origin that is not “job related for the position in question and consistent with business necessity.”  For example, if an employer requires all applicants to pass a physical agility test, does the test disproportionately screen out women? If so, is the what the test measures “job related for the position in question and consistent with business necessity”?

As more employers turn to algorithm-based technologies to make employment decisions, such as hiring, firing, promotions, and the like, there is a greater chance that AI could return results that have a disparate impact on a protected group. Resume scanners, chatbots/virtual assistants, video interviewing software that monitor facial expressions and speech patterns, and testing software, all have the potential to make decisions in a manner that violates discrimination law.

In our next article, we will take a closer look at AI and Title VII (within the larger scope of employment law), the potential pitfalls and steps that can be taken to avoid running afoul of Title VII and landing in trouble for discriminatory practices. If you have questions about the EEOC guidelines, contact us online or call (412) 338-1195.

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