AI Hiring Bias Is New Focus of EEOC

The Equal Employment Opportunity Commission's (EEOC) Strategy Enforcement Plan for 2024-2028 published in the Federal Register last year specifically addresses discriminatory recruitment and hiring practices that involve an employer's use of Artificial Intelligence (AI) and machine learning to target, recruit, and screen potential applicants or make hiring decisions.  In a case brought by the EEOC on a claim filed during 2023, the EEOC filed suit and negotiated a settlement with an employer who allegedly used software to weed out older job seekers.  In another claim and conciliation agreement with the EEOC, an employer agreed to change its programming code to remove discriminatory key words that the EEOC said unlawfully blocked American workers from the company's job ads.  In a case brought against Workday, Inc., a staffing agency, the private plaintiff contends that the AI systems the software company uses to assist businesses in hiring decisions illegally screens out Black, older and disabled job applicants.  Mobley v. Workday, Inc., N.D. Cal. No. 3:23-cv-00770.

It should be noted that in October, President Biden issued an Executive Order that governs federal agencies' use of AI.  According to the text, the Department of Labor (DOL) was directed to examine federal agencies' support to workers displaced by AI and write guidelines for federal contractors on preventing discrimination in hiring systems driven by AI, and the Attorney General was directed to coordinate with agencies to insure enforcement of existing laws regarding civil rights violations and discrimination.  The Order includes requiring DOL to develop principles to mitigate potential harms from AI-based tracking of workers' activities and productivity.  The information is mostly left to the various federal agencies to develop, and it remains unclear as to how far they can stretch their statutory authority to enforce many of these provisions. 

This article is part of our March 2024 Newsletter. 

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