August 18, 2023

EEOC Document Warns against Discriminatory Effects of Artificial Intelligence

African American Man working remote on zoom home office call

The Equal Employment Opportunity Commission (EEOC) has issued a warning to employers who use automated systems, including artificial intelligence (AI), to monitor employees and make decisions about a range of employment matters. The document says its intent is to focus on preventing discrimination against job seekers and workers, in accordance with Title VII of the Civil Rights Act (Title VII).

Employers increasingly use automated systems, including those with AI, to help them with a wide range of employment matters, such as selecting new employees, monitoring performance, and determining pay or promotions. Without proper safeguards, according to the EEOC, their use runs the risk of violating existing civil rights laws.

“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,” said EEOC Chair Charlotte A. Burrows. “This new technical assistance document will aid employers and tech developers as they design and adopt new technologies.”

EEOC Not Shy about Using Its Authority

“I’m not shy about using our enforcement authority when it’s necessary,” Burrows told Insurance Journal. “We want to work with employers, but there’s certainly no exemption to the civil rights laws because you engage in discrimination some high-tech way.”

Burrows said one example of how automated systems can violate Title VII involves resumé screeners when they produce a biased result if they are based on biased data.

“What will happen is that there’s an algorithm that is looking for patterns that reflect patterns that it’s familiar with,” she said. “It will be trained on data that comes from its existing employees. And if you have a non-diverse set of employees currently, you’re likely to end up with kicking out people inadvertently who don’t look like your current employees.”

Amazon, for instance, had to abandon its resume-scanning tool to recruit top talent after finding it favored men for technical roles – in part because it was comparing job candidates against the company’s own male-dominated tech workforce.

Companies also need to be careful about “draconian schedule-monitoring algorithms” that penalize breaks for pregnant women or Muslims taking time to pray or allowing faulty software to screen out graduates of women’s or historically Black colleges. The message is, Don’t blame AI when the EEOC comes calling.

When the EEOC is made aware of these situations it will take action, said Burrows. In March, the tech job-search website settled with EEOC to end an investigation over allegations it was allowing job posters to exclude workers of U.S. national origin in favor of immigrants seeking work visas.

Adverse Impact

The EEOC’s new technical assistance document discusses adverse impact, a key civil rights concept, to help employers prevent the use of AI from leading to discrimination in the workplace. This document builds on previous EEOC releases of technical assistance on AI and the Americans with Disabilities Act and a joint agency pledge. It also answers questions employers and tech developers may have about how Title VII applies to use of automated systems in employment decisions and assists employers in evaluating whether such systems may have an adverse or disparate impact on a basis prohibited by Title VII.

“I encourage employers to conduct an ongoing self-analysis to determine whether they are using technology in a way that could result in discrimination,” said Burrows. “This technical assistance resource is another step in helping employers and vendors understand how civil rights laws apply to automated systems used in employment.”

The EEOC’s technical assistance document is part of its Artificial Intelligence and Algorithmic Fairness Initiative, which works to ensure that software—including AI—used in hiring and other employment decisions complies with the federal civil rights laws that the EEOC enforces. The name of the document is “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964,”

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