EEOC Hearing Focuses on AI Discrimination

By Daniel Chasen posted 02-03-2023 15:28


The U.S. Equal Employment Opportunity Commission held a hearing exploring potential discrimination in AI as a “New Civil Rights Frontier,” with few employer voices represented. 

HR Policy filed comments urging an “open and transparent process involving public comment from all stakeholders” to ensure any resulting guidance clarifies employers’ obligations. 

Background: The hearing was the continuation of the Commission’s “Artificial Intelligence and Algorithmic Fairness Initiative,” launched in November 2021 to ensure that artificial intelligence and algorithmic decision-making tools “do not become a high-tech pathway to discrimination,” in the words of EEOC Chair Charlotte Burrows. Last year, the EEOC issued technical guidance on how employers’ use of software that relies on algorithmic decision-making may violate the Americans with Disabilities Act. The EEOC’s recently-released draft Strategic Enforcement Plan notes the Commission will “focus on recruitment and hiring practices and policies that discriminate against” protected classes, particularly “the use of automated systems, including artificial intelligence or machine learning, to target job advertisements, recruit applicants, or make or assist in hiring decisions.” 

Chair Burrows noted the purpose of the hearing is “to raise awareness of the promise but also the risks of automated decision-making tools,” observing, “By some estimates… 99% of Fortune 500 companies now use some form of automated tools to screen or rank candidates for hire.” She highlighted the EEOC’s role in ensuring the use of such tools does not produce discriminatory results. 

Commissioner Sonderling noted the conspicuous shortage of employer perspectives in the hearing, emphasizing “it is essential to hear from a wide range of stakeholders” and that “not a single witness today has ever designed, built, marketed, sold, bought, or had the burden of implementing workplace AI programs, nor are they the employers ultimately responsible to the EEOC for the unlawful use of AI employment tools.” Out of the 12 witnesses, two represented the business community’s point of view. Mr. Sonderling went on to observe that such deficit is a “disservice to the public, and undermine guidance or regulations that are subsequently issued from this hearing.” 

Our filed comments noted, “HR Policy Association strongly urges the Commission to undertake an open and transparent process involving public comment from all stakeholders, to the end that any resulting guidance or regulation clarifies rather than adds to the complexity of a rapidly-growing regulatory regime.” We further advocated that: 

  • New guidelines or standards should align with existing government policies and commonly adopted employer best practices; and

  • A “one-size-fits-all” approach to oversight may inadvertently expose workers to risk as AI is not a monolithic concept. 

Looking ahead: The Commission is highly likely to issue further guidance or regulation in this area. HRPA will remain highly engaged to ensure that the risks of AI are minimized while the rewards are maximized, and that the policy landscape is clarified for employers.