EEOC Empowers Employers With New Guidelines To Assess AI’s Impact On Employment Decisions
The Equal Employment Opportunity Commission (EEOC) has taken a significant step toward preventing discrimination against job seekers and workers with the release of a new technical assistance document.
This article was originally published in Forbes on May 22, 2023.
The Equal Employment Opportunity Commission (EEOC) has taken a significant step toward preventing discrimination against job seekers and workers with the release of a new technical assistance document. Titled “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964,” the resource provides employers with guidance on incorporating automated systems, including artificial intelligence (AI), while ensuring compliance with Title VII.
Title VII of the Civil Rights Act of 1964 is a fundamental piece of legislation that prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Employers have long been advised to monitor their traditional decision-making processes to ensure they do not have a disproportionately negative effect on protected groups. With the emergence of algorithmic decision-making tools, employers must understand the legal framework surrounding its use.
The use of automated systems, including AI, has become increasingly common in employment matters such as candidate selection, performance monitoring, and compensation decisions. These tools encompass a wide range of functionalities, including resume scanners, employee monitoring software, virtual assistants, video interviewing software, and testing software. However, these technologies can inadvertently violate civil rights laws, including Title VII, without proper safeguards.
In a statement, EEOC Chair Charlotte A. Burrows emphasized the importance of ensuring the alignment between AI technologies and civil rights laws. Chair Burrows noted, “As employers increasingly turn to AI and other automated systems, they must ensure that the use of these technologies aligns with the civil rights laws and our national values of fairness, justice, and equality.” The newly released technical assistance document aims to assist employers and tech developers in designing and adopting AI technologies that adhere to these principles.
The technical assistance document provided by the EEOC focuses on the concept of adverse impact, a critical civil rights consideration, in order to prevent AI from leading to workplace discrimination. By building upon previous technical assistance releases related to AI and the Americans with Disabilities Act and a joint agency pledge, the EEOC provides employers and tech developers with answers to common questions regarding Title VII’s application to the use of automated systems in employment decisions. Moreover, it assists employers in evaluating whether these systems may result in an adverse or disparate impact on any protected basis covered by Title VII.
For example, to assess adverse impact, employers can use the “four-fifths rule” as a rule of thumb. If the selection rate for a protected group is less than 80% of the selection rate for another group, it may indicate substantial differences and potential discrimination. However, this rule is not a substitute for statistical significance testing. Minor differences in selection rates or other circumstances may still indicate an adverse impact. Employers must consider the context and gather additional information about the AI tool and its impact on protected groups. Compliance with the four-fifths rule alone may not suffice to establish lawful procedures under Title VII.
Chair Burrows encourages employers to conduct ongoing self-analyses to ensure that their use of technology does not inadvertently result in discrimination. Further, employers should recognize their responsibility for the AI tools they use, even if developed or administered by an external vendor. By utilizing the EEOC’s technical assistance document, employers and vendors can better understand how civil rights laws apply to automated systems used in employment.
Integrating AI in employment decisions offers numerous benefits but poses challenges related to fairness and compliance with anti-discrimination laws. The EEOC’s release of the technical assistance document is part of its broader Artificial Intelligence and Algorithmic Fairness Initiative. It serves as a valuable resource for individuals and organizations grappling with using algorithmic decision-making tools in the workplace. While it does not establish new policies or regulations, it clarifies the application of existing Title VII principles.
The EEOC aims to assist employers and tech developers in navigating the complex landscape of AI technologies by promoting fairness, justice, and equality. Employers are encouraged to utilize the resource to help ensure that their automated systems promote equal opportunities and protect against discrimination in the workplace.
Release Date: May 31, 2023
Alonzo Martinez is Associate General Counsel at HireRight. Mr. Martinez is responsible for monitoring and advising on key legislative and regulatory developments globally affecting HireRight’s service delivery. His work is focused on ensuring HireRight’s performance as a consumer reporting agency and data processor complies with relevant legal, regulatory, and data furnisher requirements. Mr. Martinez obtained his Juris Doctorate from the University of Colorado, and is licensed by the Supreme Court of the State of Colorado. He is a member of the Colorado Bar Association Employment Law Division, the Association of Corporate Counsel, and the Professional Background Screening Association.