January 31, 2023

Artificial Intelligence – Not So Smart?

On January 31, 2023, the EEOC hosted a public hearing “Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier.” While I did not attend the entire hearing, here are a few take aways.”

  • There was discussion about whether employers using AI or automated systems should be required to collect individuals’ demographic information who use those systems.
  • More than once, the speakers reminded us:
    • An employer must be able to demonstrate that its use of AI or automated systems must be “job related and consistent with business necessity.”
    • The use of AI or automated systems as they relate to employment testing and selection procedures falls under the EEOC’s Uniform Guidelines on Employee Selection Procedures (UGESP).
  • On the Horizon: Several speakers referenced the EEOC’s opportunity to publish updated guidance on this matter, including under the Americans with Disabilities Act (ADA); Title VII of the Civil Rights Act; and the Age Discrimination in Employment Act (ADEA).

It is not just the EEOC looking at this issue. The White House recently issued an AI Bill of Rights that references employment more than once. At least two related bills are also pending in Congress: Algorithmic Accountability Act of 2022 and the America Competes Act, both of which have employment implications.

TipsClick here to review the EEOC’s May 12, 2022, guidance “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees.” It includes recommendations for employers, questions to ask your AI vendors, and more.

As of this writing, the recording from today’s public hearing is not yet available. Click here for the EEOC’s AI hearing webpage for updates.