On January 31, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) held a public hearing entitled “Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier”.[1] During the hearing, the EEOC explored the potential benefits and harms associated with artificial intelligence (AI) and other automated systems in the context of employment-related decisions, such as recruiting, hiring, promoting, monitoring, and firing employees.

The EEOC stated that its goals in hosting the hearing were to educate a broader audience about the civil rights implications of using such systems and to identify next steps the EEOC can take to prevent and eliminate unlawful bias when employers use such technology. Despite the discriminatory risks AI poses, the EEOC’s materials show that the commission also recognizes the benefits automated systems can provide to employers and that AI can be a powerful tool in achieving equity in the workplace.

This hearing builds on the EEOC’s Artificial Intelligence and Algorithmic Fairness Initiative (the Initiative), launched in 2021. As part of the Initiative, the EEOC plans to:

  • issue technical assistance to provide guidance on algorithmic fairness and the use of AI in employment decisions;
  • identify promising practices;
  • hold listening sessions with key stakeholders about algorithmic tools and their employment ramifications; and
  • gather information about the adoption, design, and impact of employment-related technologies.

During the hearing, the EEOC heard from 12 panelists, including stakeholders such as various academics, the US Chamber of Commerce, the American Civil Liberties Union (ACLU), various legal professionals, and the AARP.

Other jurisdictions are also taking action in regulating AI as a tool for making employment related decisions. New York City, for example, enacted Local Law 144 (also known as the Bias Audit Law) which was initially to be effective January 1, 2023, but whose enforcement has been postponed until April 15, 2023. Among other things, the Bias Audit Law restricts employers in New York City from using AI machine-learning products to screen candidates during hirings and promotions unless such products have been subjected to a “bias audit” no more than one year beforehand. New York City’s Department of Consumer and Worker Protection has held two hearings to receive public comment on its proposed rules.

Take away

Applications for AI in human resources management are evolving rapidly. The EEOC hearing and the Bias Audit Law show that regulators and legislators in various jurisdictions are following these developments and intend to regulate AI use. Employers should take heed.

Regardless whether employers are currently subject to AI-related laws or regulations, they should review any automated systems they currently rely on and carefully consider the products they utilize going forward. Even absent such legal requirements, failing to properly vet AI for the workplace can result in companies inadvertently discriminating against employees and candidates, and expose them to legal action down the line.

[1] The full video of the hearing is available here.