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EEOC continues to prioritize its focus on the use of artificial intelligence in employment decisions.

ABSTRACT: The EEOC continues to focus on the application of the federal employment laws it enforces to the use of artificial intelligence (“AI”) and other automated systems in employment decisions. Most recently, the EEOC held a public hearing on January 31st. The stated goal of the hearing was two-fold: (1) educate a broader audience about potential civil rights implications from the use of AI and automated systems; and (2) to identify the EEOC’s next steps to prevent and eliminate unlawful bias so that this technology does not become a pathway to discrimination.

The EEOC’s continues to prioritize its focus on the emerging topic of the use of artificial intelligence and other technologies in making employment decisions. The EEOC first announced its Artificial Intelligence initiative in 2021. The initiative was created to ensure the use of software, including AI and other technologies used in employment decisions, comply with the federal employment laws it is tasked with enforcing. 

As part of the AI initiative announced in 2021, the EEOC advised it would: issue technical assistance to provide guidance on the use of AI in employment decisions, identify promising practices, hold listening sessions with key stakeholders about algorithmic tools and employment ramifications, and gather information about the adoption, design, and impact of hiring and other employment-related technologies.

In 2022, the EEOC carried out these efforts, issuing a video, “Use of Artificial Intelligence in Making Job Decisions for People with Disabilities”, as well as publishing the following guidance: “Tips for Workers: The American with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence” and “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees”. The Commission also held numerous education sessions for human resources professionals that focused on AI and employment decisions, offering HRCI, SHRM, and CLE credits.

Then, the EEOC started off this year with a public hearing titled “Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier”, with nearly 3,000 members of the public attending. Employer representatives, legal experts, industrial-organizational psychologists, computer scientists, and civil rights advocates spoke at this public hearing. Generally, the discussion addressed how the use of AI could potentially result in discriminatory employment decisions, as well as ways that AI and automated systems might help or obstruct diversity, equity, inclusion and accessibility endeavors. The EEOC invited the public to submit written comments on the use of AI and automated systems through February 15th.

Key Takeaway

In the coming years, the EEOC is expected to continue its strong focus on AI and its use in employment decision-making, including the issuance of additional publications and guidance addressing the application of anti-discrimination laws to AI and other automated systems. While the initial guidance issued by the EEOC addressed concerns under the Americans with Disabilities Act, the scope of topics tackled at the most recent public hearing was much broader, discussing the potential impact of AI on all classes protected under federal law. The Baker Sterchi Cowden & Rice Employment Practice Group will continue to follow this emerging topic and will provide updates as more information becomes available.