EEOC Alerts Employers to AI Discrimination Risks

The Equal Employment Opportunity Commission released new technical assistance Thursday offering guidance on how to prevent discrimination via software, artificial intelligence and automated systems in the workplace. 

The guidance, which lays out the connection of the Title VII of the Civil Rights Act to employers' use of automated systems, is the latest product to come out of the EEOC's continued focus on enforcement in regards to automated systems and AI in the workplace—technologies that are increasingly being used to screen resumes, do video interviews, monitor employees and more.

That focus on AI and its impact extends past enforcement agencies to the broader Biden administration as well. Vice President Kamala Harris hosted heads of AI companies in the White House this month, and the White House has also said that guidance for how the government itself uses AI is also coming.

"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 agency chairwoman Charlotte Burrows in a statement.  

The focus of the latest technical assistance from the EEOC is on how employers can use adverse impact measures—an existing civil rights concept about whether a procedure has a discriminatory outcome—to monitor algorithmic decision-making tools used to make employment decisions like hiring, promotion and firing. 

Both intentional discrimination and neutral employment practices that end up having disparate impacts based on things like race, religion or sex are prohibited, the agency said. In "many cases," employers are responsible for following the law even if the tools are coming from an outside vendor.

EEOC teed up its intentions to target AI-fueled employment discrimination in a five-year strategic enforcement plan released in January.