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► EEOC Holds Hearing On Artificial Intelligence

On January 31, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) held a hearing on the use of artificial intelligence (AI) in employment, entitled “Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier.” The hearing was part of the agency’s Artificial Intelligence and Algorithmic Fairness Initiative launched in 2021 “to ensure that the use of software, including artificial intelligence (AI) . . . and other emerging technologies used in hiring and other employment decisions comply with the federal civil rights laws.” Although it’s impossible to predict the exact results of the hearing, future guidance on the application of the uniform guidelines of employee selection procedures (UGESP) to AI seems likely in the near future.

Missing Viewpoints

During the hearing, the EEOC heard from a dozen experts, including professors of law and data science, representatives from the ACLU and the Chamber of Commerce, and two practicing attorneys. One telling aspect of the hearing was that only two of the 12 guests represented the interests of employers and not a single representative from an AI vendor testified.

This led Republican-appointed commissioners Andres Lucas and Keith Sonderling to express frustration with the imbalance. Given the lack of viewpoint diversity at the January 31 hearing, further hearings on this topic with more professionally and ideologically diverse panelists seem warranted.

Further Guidance Potentially on the Way

Another telling aspect of the hearing were the numerous comments and questions from commission members regarding the application of UGESP to AI. Vice Chair Jocelyn Samuels stated that UGESP provides useful guidance for evaluating AI technology and Commissioner Lucas asked a panelist if the commission should issue guidance clarifying that UGESP extends to AI selection tools.

Additionally, one of the panelists remarked that AI hiring tool vendors only run the 4/5ths analysis before placing products on the market, rather than a more robust analysis that incorporates measures of statistical significance. In response Chair Charlotte Burrows explained that UGESP only designates the 4/5ths rule as a rule of thumb and that alone the 4/5ths analysis isn’t sufficient to determine whether adverse impact has occurred. Taken together, this suggests the EEOC guidance on the limitations of the 4/5ths rule is forthcoming, along with guidance that UGESP can and should be used to validate AI tools.

More Hearings Would Be Beneficial

If the EEOC intends to release further guidance on AI, in addition to the guidance on AI and the Americans with Disabilities Act (ADA) it released last spring, the commission should ensure it hears from all stakeholders first.

I recently served on the Artificial Intelligence Technical Advisory Committee (AI TAC) created by the nonprofit Institute for Workplace Equality. The AI TAC formed to write guidelines for AI use in employee selections was composed of lawyers, data scientists, and industrial and organizational psychologists from a variety of groups, including representatives of vendors, employers, and employee advocates. The report we released last December benefitted from bringing all parties to the table to discuss the significant issues in this field.

Bottom Line

AI hiring technology is complicated and evolving rapidly. Leaving important interest groups out of the conversation is more likely to produce unworkable sub-regulatory guidance. It’s my hope that the commission takes the time to hold the necessary additional hearings before weighing in further on AI-driven selection technology.

By Savanna L. Shuntich. Ms. Shuntich is an attorney with FortneyScott in Washington, D.C. Savanna’s practice includes representation of individuals and companies in employment litigation matters before federal and state courts and administrative agencies. She handles discrimination and retaliation cases under Title VII, the ADA, and other applicable federal and state civil right laws, as well as contractual disputes between employers and employees.


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