AI-Based Bias a Hot Topic of Discussion During EEOC-Led Meeting

A stakeholder panel that the U.S. Equal Employment Opportunity Commission (EEOC) hosted in September was dominated by discussions related to smart technology, such as machine-learning recruitment systems used for hiring purposes.

The meeting was intended for employers, attorneys and civil rights advocates to discuss topics for the agency to consider when drafting its new strategic enforcement plan (SEP).

The witnesses talked about pregnancy accommodations, sex-based caregiver discrimination and pay equity as issues to consider for the next SEP, which provides organizations with a roadmap of areas where they can expect increased scrutiny moving forward.

But discussion of AI bias made up the bulk of the five-hour listening session.

"[We] urge the next SEPs to include a focus on the ways in which relying on algorithmic technology and artificial intelligence in hiring can replicate and systematize harmful and [stereotypical] decision-making while also making such discrimination more difficult to challenge because of the black-box nature of those decision-making processes," said Emily Martin, vice president for education and workplace justice at the National Women's Law Center.

Judy Conti, director for government affairs at the National Employment Law Project, said that automation tools are becoming increasingly common but are often programmed and trained based on past hiring practices that can replicate patterns of illegal bias.

"They search for indicators that supposedly correlate to job performance, but these indicators may well be built upon preconceived notions that embody implicit biases at their core and could filter out qualified candidates that don't fit a certain mold," she noted.

AI Has Received Heavy Scrutiny

In 2019, The Washington Post reported that an algorithmic hiring system developed by Utah-based technology firm HireVue assessed over 1 million video job interviews.

Its autonomous interview system asks questions of candidates, films their responses and then uses the video to assess candidates for various jobs based on an "employability" score, which factors in their "willingness to learn" and "personal stability." HireVue has since stopped its facial analysis.

Meredith Whittaker, a co-founder of the AI Now Institute, a research center in New York, told The Washington Post that such algorithmic systems are "pseudoscience" and "a license to discriminate" against underrepresented candidates. But HireVue claims that it uses "world-class bias testing" techniques to prevent hiring discrimination.

In 2018, tech giant Amazon ditched an AI recruiting tool after discovering that it discriminated against women. The algorithm was based on the number of resumes submitted over the past decade, most of whom were men. Therefore, it was trained to favor men over women.

And in 2022, the EEOC sued three integrated companies providing English-language tutoring services to students in China under the "iTutorGroup" brand, alleging that they programmed their online software to automatically reject more than 200 older applicants.

Eve Hill, a disability rights attorney and partner at Brown Goldstein & Levy in Baltimore, said during the EEOC meeting that AI-based screening providers should teach and test the tools on large, documented, diverse datasets on an ongoing basis to ensure the results don't discriminate.

"Artificial intelligence-based discrimination is one of the things that is most frightening me right now," Hill said. "The employers using them often don't know how they work."

AI Can Be an Effective Tool When Used Properly

Emily Dickens, chief of staff, head of government affairs and corporate secretary for the Society for Human Resource Management (SHRM), noted that nearly 80 percent of organizations polled in a recent survey used or planned to use AI for HR purposes within the next five years.

She also said that leveraging AI-based devices in HR isn't all bad. For example, algorithmic systems have transformed how businesses operate by reducing the time it takes to fill open positions. And nearly 3 in 5 organizations report that the quality of recruits is higher due to their use of AI.

A 2022 SHRM report showed that AI can help eliminate unconscious bias by HR leaders, resulting in an increase in equal employment opportunities when done correctly.

"This is not the moment to impose heavy-handed regulatory restrictions that will set key HR functions back and impede the ability to create and identify talent pipelines," Dickens said.

Several witnesses praised the EEOC for its Artificial Intelligence and Algorithmic Fairness Initiative, which ensures that AI is used fairly and consistently with federal laws. And some municipalities have set up regulations to combat AI-related workplace bias.

For example, New York City passed a law that will prohibit companies from using AI and algorithm-based technologies for recruiting, hiring or promotion without those tools first being audited by a third party for bias.

"As I look across the country in the last two or three years, almost every state is starting to look at AI and [create] a task force," said Darrell Gay, partner at law firm ArentFox Schiff in Washington, D.C. "I would urge the EEOC [to create its] own task force in coordinating with the other agencies to kind of look at this in a systematic way across the country."