On May 18, 2023, the Equal Employment Opportunity Commission (EEOC) released a technical assistance document, “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964.” The document focuses on preventing discrimination against job seekers and workers and explains the application of key established aspects of Title VII of the Civil Rights Act (Title VII) to an employer’s use of automated systems, including those that incorporate artificial intelligence (AI).
Employers increasingly use automated systems, including those with AI, to help them with a wide range of employment matters, such as selecting new employees, monitoring performance, and determining pay or promotions. Without proper safeguards, their use may run the risk of violating existing civil rights laws.
The EEOC’s new technical assistance document discusses adverse impact to help employers prevent the use of AI from leading to discrimination in the workplace. This document builds on previous EEOC releases of technical assistance on AI and the Americans with Disabilities Act and a joint agency pledge. It also answers questions employers and tech developers may have about how Title VII applies to use of automated systems in employment decisions and assists employers in evaluating whether such systems may have an adverse or disparate impact on a basis prohibited by Title VII.
“I encourage employers to conduct an ongoing self-analysis to determine whether they are using technology in a way that could result in discrimination,” said EEOC Chair Charlotte A. Burrows. “This technical assistance resource is another step in helping employers and vendors understand how civil rights laws apply to automated systems used in employment.”
The new technical assistance document can be accessed here.
Compliance Perspective
Issue
Employers now have a wide variety of computer-based tools available to assist them in hiring workers, monitoring worker performance, determining pay or promotions, and establishing the terms and conditions of employment. Employers may utilize these tools in an attempt to save time and effort, increase objectivity, or decrease bias. While these technologies may be useful tools for some employers, they may also result in unlawful discrimination against certain groups of applicants. Title VII generally prohibits employers from using neutral tests or selection procedures that have the effect of disproportionately excluding persons based on race, color, religion, sex, or national origin, if the tests or selection procedures are not job related for the position in question and consistent with business necessity.
Discussion Points
- When designing or choosing hiring technologies, employers must consider how their tools might lead to discrimination in the workplace. Review your policies and procedures on the use of software tools in the hiring process, for monitoring performance, and for determining rates of pay or promotions. Update your policies as needed.
- Train appropriate staff on Title VII and ADA requirements. Ensure that the trainings include the acceptable use of software tools for employment purposes. Document that these trainings occurred and file each signed document in the employee’s individual education file.
- Periodically audit to ensure that no Title VII or ADA discrimination occurred in hiring new employees, performance monitoring, and determining pay rates or promotions.
*This news alert has been prepared by Med-Net Concepts, LLC for informational purposes only and is not intended to provide legal advice.*
