How Employers Can Prepare for the EEOC's Focus on AI

​For years, employers have increasingly automated the recruiting and hiring process using artificial intelligence and other algorithmic tools. While there is added value in such automation, researchers have cautioned that the technology may result in biased and discriminatory results, largely because the data (for example, search terms and traits of ideal candidates) entered into this technology may suffer from past biases and unlawful discrimination.

Tellingly, the Equal Employment Opportunity Commission (EEOC) has examined the issues of people analytics, big data and AI in hiring and other employment decisions since 2016, even holding a public meeting on the implications of big data in the workplace. These and other actions by the EEOC demonstrate its early concern that potential systemic discrimination issues might arise from the use of AI and big data.

Senators' Letter to the EEOC

Social distancing during the pandemic required remote work and the need for and use of more AI and related technology throughout the employment process, including interviewing, recruiting and hiring.

The use of such technologies is expected to continue to increase. Indeed, in December 2020, 10 United States senators sent a joint letter to the then-chair of the EEOC inquiring about the agency's "oversight authority for hiring technologies." The letter noted that as businesses begin to reopen in accordance with COVID-19 guidance, "some companies will seek to hire staff more quickly" and "are likely to turn to technology to manage and screen large numbers of applicants to support a physically distant hiring process."

The senators went on to state that "Black and Latino workers are experiencing significantly higher unemployment rates than their white counterparts," with the "gap between Black and white workers [being] the highest it's been in five years." The senators indicated that the EEOC is tasked with ensuring that these hiring technologies do not act as "built-in headwinds for minority groups," explaining that there should be proactive efforts to effectively oversee the use of these hiring technologies.

EEOC AI Initiative Launched

Subsequently, on Oct. 28, 2021, EEOC Chair Charlotte A. Burrows announced that the commission was launching an initiative to ensure AI and other emerging tools used in hiring and other employment decisions comply with federal civil rights laws that the agency enforces. Notably, Title VII of the Civil Rights Act of 1964 prohibits the use of neutral policies and procedures that disproportionately adversely impact (or screen out) a group protected under the act because of their race, national origin, ethnicity, gender, disability or other protected trait. This initiative will be used to examine how these technologies are being applied during the recruiting and hiring process and to provide guidance to not only employers but also applicants, employees, vendors and those developing the technology.

As part of these efforts, the EEOC is hosting listening sessions to gather more information on how these technologies are used or could otherwise adversely impact others, most recently focusing a session on the impact on people with disabilities.

Proactive Steps

As the EEOC continues its efforts, it is important for employers that are using these technologies to be proactive. It will not be enough to simply say the employer relied on representations made by the vendor or software developers concerning what they are doing to prevent potential violation of federal, state or local employment laws. 

Employers should create measures to ensure that the vendors are vetted and the technologies in whatever form being used for recruiting, interviewing, hiring, testing or other aspects of the employment relationship are validated and audited for potential biases and legal concerns. In short, employers should ensure the technologies are doing what they are supposed to do in a lawful manner.

This includes:

• Having a working knowledge of what algorithms are being used.
• Understanding what information is being used, the source of the information and in what manner the information is being used throughout the process.
• Determining whether there are any concerning patterns in the results from using the tools (for example, are certain groups always screened out, are people who live in certain zip codes always screened out and is the candidate pool diverse).

Employers should also continue to train human resource and management employees on best practices when navigating the hiring process to add additional layers of bias interrupters. This might include diversity, equity and inclusion-related training topics on inclusive leadership, interview techniques, communication skills, reducing the influence of implicit bias, how to properly use the technologies and other topics. 

As the use of AI and related algorithms and technologies continues to increase, employers should be diligent about ensuring there are multiple measures in place to overcome claims that an organization's use of these technologies is discriminatory or otherwise adversely impacting groups of people based on their protected traits.

Nakimuli O. Davis-Primer, an attorney in the Jackson, Miss., office of Baker Donelson, concentrates her practice in the areas of labor and employment and commercial litigation. She can be reached at ndavisprimer@bakerdonelson.com.