By Andrew L. Scroggins and Alex W. Karasik

Seyfarth Synopsis:  While businesses have shifted their operations to digital platforms over the last few decades, the COVID-19 pandemic has greatly accelerated the transformation of the workplace. One area where employers have looked to increase the efficiency of their hiring processes is through the use of artificial intelligence. The EEOC has been paying attention to this trend as well, and on October 28, 2021, the Commission announced an initiative to ensure that artificial intelligence (AI) and other emerging tools used in hiring and employment decisions comply with the federal civil rights laws that the agency enforces. It behooves employers to understand and heed the Commission’s new initiative.

Artificial Intelligence In The Employment Setting

Businesses are routinely looking for new and improved ways to source, screen, and on-board talented employees. The era of written applications dropped off in person by candidates has given way to electronic tools that can include online job postings, web-based applications and questionnaires, computer-aided screening tools, and video conference interviews and presentations. Innovative employers may use keyword searches and predictive algorithms – sometimes created in-house and other times licensed through vendors – to help target and rank candidates best suited to their needs. Employers facing the challenges of the tight labor market may see artificial intelligence as a way to bring unique efficiencies to the hiring process.

Of course, while the tools for hiring may be evolving, the guardrails set by employment laws remain in place. And that means oversight by the EEOC can be expected.

The EEOC’s Announcement

At an external event on October 28, 2021, EEOC Chair Charlotte A. Burrows announced the EEOC’s intent to more closely scrutinize this potential area for discrimination. Burrows acknowledged both the potential benefits and challenges at hand: “Artificial intelligence and algorithmic decision-making tools have great potential to improve our lives, including in the area of employment. At the same time, the EEOC is keenly aware that these tools may mask and perpetuate bias or create new discriminatory barriers to jobs. We must work to ensure that these new technologies do not become a high-tech pathway to discrimination.” Burrows’ comments follow recent comments by fellow EEOC Commissioner Keith Sonderling. On October 20, 2021, Sonderling gave a speech in New York (and tweeted more broadly later) that “highlighted the potential #cybersecurity and #privacy concerns employers must be aware of when using #AI to make employment decisions.” As a thought-leader in this space, Sonderling also has written articles and given statements to other publications on the topic. Those public remarks from EEOC Commissioners appointed by different administrations confirm the Commission’s intent to focus on this area.

The EEOC’s announcement explains that the, “initiative will examine more closely how technology is fundamentally changing the way employment decisions are made. It aims to guide applicants, employees, employers, and technology vendors.” Burrows added that, “While the technology may be evolving, anti-discrimination laws still apply,” and perhaps most importantly for employers, “Bias in employment arising from the use of algorithms and AI falls squarely within the Commission’s priority to address systemic discrimination.” Id.

The EEOC laid out five prongs to its initiative: (1) establish an internal working group to coordinate the agency’s work on the initiative; (2) launch a series of listening sessions with key stakeholders about algorithmic tools and their employment ramifications; (3) gather information about the adoption, design, and impact of hiring and other employment-related technologies; (4) identify promising practices; and (5) issue technical assistance to provide guidance on algorithmic fairness and the use of AI in employment decisions. Id. The EEOC indicates these plans build off work it has been doing in this area since 2016.  Id.

Implications For Employers

When the Commission declares an area to be a systemic discrimination priority, employers should take heed. Employers who utilize artificial intelligence, algorithmic decision-making tools, and other automated processes should evaluate their use to ensure no resulting bias. Likewise, when considering third party vendors, employers should ask what steps have been taken to ensure that the tools are compliant with employment. And during EEOC investigations, employers should be on the alert for requests that suggest the EEOC is interested in taking a closer look at the use of these tools. In sum, as business practices evolve with the technology, so too does the EEOC in its enforcement priorities.