A new resource from the EEOC could help employers avoid bias claims from using AI

Yesterday, 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,” which is focused on preventing discrimination against job seekers and workers.

EEOC Chair Charlotte A. Burrows notes that “this new technical assistance document will aid employers and tech developers as they design and adopt new technologies.”

It is part of its Artificial Intelligence and Algorithmic Fairness Initiative, which works to ensure that software—including AI—used in hiring and other employment decisions complies with the federal civil rights laws that the EEOC enforces.

The EEOC’s new technical assistance document:

• discusses adverse impact, a key civil rights concept, to help employers prevent the use of AI from leading to discrimination in the workplace;
• builds on previous EEOC releases of technical assistance on AI and the Americans with Disabilities Act and a joint agency pledge; and
• answers questions employers and tech developers may have about how Title VII applies to the 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.

For example, the EEOC clarifies that, in many cases, an employer is responsible under Title VII for its use of algorithmic decision-making tools, even if the tools are designed or administered by another entity, such as a software vendor. Therefore, employers may want to ask the vendor, at a minimum, whether steps have been taken to evaluate whether the use of the tool causes a substantially lower selection rate for individuals with a characteristic protected by Title VII. Just note that even if the vendor incorrectly assesses the tool, and the tool does result in disparate impact or treatment discrimination, the employer could still be liable.

The EEOC encourages employers to conduct ongoing self-analyses to determine whether their employment practices have a disproportionately large negative effect on a basis prohibited under Title VII or treat protected groups differently. Generally, employers can proactively change the practice in the future.

If you really want to nerd out on best practices, statements, and roadmaps by leading private sector organizations for AI governance, check out this law review article from EEOC Commissioner Keith Sonderling.