The Use Of Artificial Intelligence In Employee Selection Procedures: Updated Guidance From The EEOC

• Jurisdiction: United States,Federal
• Law Firm: Sheppard Mullin Richter & Hampton
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations
• Author: Mr Luke Bickel and Yasamin Parsafar
• Published date: 09 June 2023

As we previously reported, the Equal Employment Opportunity Commission ("EEOC") has had on its radar potential harms that may result from the use of artificial intelligence technology ("AI") in the workplace. While some jurisdictions have already enacted requirements and restrictions on the use of AI decision making tools in employee selection methods,¹ on May 18, 2023, the EEOC updated its guidance on the use of AI for employment-related decisions, issuing a technical assistance document titled "Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964" ("Updated Guidance"). The Updated Guidance comes almost a year after the EEOC published related guidance explaining how employers' use of algorithmic decision-making tools may violate the Americans with Disabilities Act ("ADA"). The Updated Guidance instead focuses on how the use of AI may implicate Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin. Particularly, the EEOC focuses on the disparate impact AI may have on "selection procedures" for hiring, firing, and promoting.

A Background of Title VII

As a brief background, Title VII was enacted to help protect applicants and employees from discrimination based on race, color, religion, sex, and national origin. Title VII is also the act that created the EEOC. In its almost 60 years of life, Title VII has been interpreted to include protection against sexual harassment and discrimination based on pregnancy, sexual orientation, gender identity, disability, age, and genetic information. It prohibits discriminatory actions by employers in making employment-related decisions including, for example, with respect to recruiting, hiring, monitoring, promoting, transferring, and terminating employees. There are two main categories of discrimination under Title VII: (1) disparate treatment, which refers to the intentional discriminatory decisions of an employer, and (2) disparate impact, which refers to the unintentional discrimination that occurs as a result of an employer's patterns and practices. As stated above, the EEOC's Updated Guidance focuses on the effects AI may have on the latter.

The EEOC's Updated Guidance on the Use of AI Decision Making Tools

The Updated Guidance provides important information to help employers understand how the use of AI...