Employers can't rely on a vendor's assurances that its AI tool complies with Title VII of the Civil Rights Act of 1964. If the tool results in an adverse discriminatory impact, the employer may be held liable, the U.S. Equal Employment Opportunity Commission (EEOC) clarified in new technical assistance on May 18. The guidance explained the application of Title VII of the Civil Rights Act of 1964 to automated systems that incorporate artificial intelligence in a range of HR-related uses.
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EEOC Issues Guidance on Use of AI
SHRM | May 2023
EEOC Releases New Resource on Artificial Intelligence and Title VII
EEOC | May 2023
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We can all expect that AI either already is or will become a routine part of your recruiting and hiring, perhaps eventually even helping to manage performance. The use of AI is likely to help ease the administrative burden to screen applications and even conducting first interviews. But it is likely to also increase your risk for disparate impact claims.
Using AI to Help Hire May Seem Easy — Until the Legal Challenge Comes In
Foley | Jun 2023
The EEOC clarifies that a "selection procedure" is "any 'measure, combination of measures, or procedure,' that is used as a basis for an employment decision." In other words, the EEOC considers a selection procedure to encompass any and all decisions made by employers that affect an employee's position in the company, from the employee's application to their separation.
The Use of Artificial Intelligence in Employee Selection Procedures: Updated Guidance From the EEOC
Sheppard | Jun 2023
As the EEOC explains, the "four-fifths rule", also referred to as the disparate impact ratio, is a general, illustrative rule and may not always be appropriate, but can assist employers in determining whether a selection rate of one group is "substantially" different from the selection rate of another group. According to the EEOC, a selection rate is considered substantially different if the ratio for one group is less than four-fifths (80%).
The EEOC Issues New Guidance on Use of Artificial Intelligence in Hiring
Bricker | Jun 2023
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Nevertheless, both employers using AI and their vendors should be aware that the EEOC’s position signals the EEOC’s willingness to entertain theories of direct liability in its investigation processes, and potential EEOC-initiated litigation. It further invites class-action plaintiffs’ counsel to consider these theories when identifying potential class-action litigation targets. Even if an employer believes that its use of AI in hiring is nothing like what is being alleged in the Mobley Amended Complaint, employers and AI vendors should continue to proactively assess and monitor their AI-driven hiring processes, understanding that the degree of human involvement will likely face increased scrutiny in light of the EEOC’s position.
EEOC Argues Vendors Using Artificial Intelligence Tools Are Subject to Title VII, the ADA and ADEA Under Novel Theories in Workday Litigation
Seyfarth | Apr 2024
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