On October 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) unveiled an initiative focused on fairness in the use of artificial intelligence (AI) and algorithmic tools, showing that federal regulators continue to focus additional scrutiny on emerging technologies. According to the EEOC’s press release, this new initiative will focus on ensuring that AI and algorithmic decision-making tools used in hiring and other employment-related decisions comply with federal civil rights laws, such as Title VII of the Civil Rights Act of 1964, as amended, which prohibits the use of neutral selection procedures that disproportionately screen out minority groups or women unless proven to be job related and consistent with business necessity.
The EEOC plans to use the initiative to examine how these developing technologies are being applied during employment decisions while setting guidance for employers, employees, technology developers and vendors to align with federal law. The goals of the EEOC AI initiative include plans to:
- Establish an internal working group responsible for coordinating the agency’s work on the initiative.
- Gather information regarding the development, adaptation and impact of these technologies.
- Hold a series of informational listening sessions with key stakeholders.
- Provide technical assistance and guidance on using algorithms and AI during employment decision making.1
The use of AI and other algorithmic tools will continue to expand as employers seek to streamline the hiring process and meet the evolving needs of their industries. The EEOC has kept track of this growth, examining the role of AI, big data and people analytics in hiring and employment since 2016.2 EEOC Chair Charlotte A. Burrows emphasized the importance of supporting the significant potential of AI and other emerging tools in employment processes, while ensuring compliance with existing law.3 As the agency prepares to apply its mandate to these emergent technologies, companies that use AI or other algorithmic decision-making tools, or plan to do so in the future, must comply with antidiscrimination laws and account for developing EEOC enforcement guidance in this area.
Please contact a member of Akin Gump’s cybersecurity, privacy and data protection team or labor and employment team if you have any questions about how this new initiative may impact your company or your company’s hiring and employment practices.
1 Equal Employment Opportunity Comm’n, Press Release, EEOC Launches Initiative on Artificial Intelligence and Algorithmic Fairness (October 28, 2021), available at https://www.eeoc.gov/newsroom/eeoc-launches-initiative-artificial-intelligence-and-algorithmic-fairness.
2 Id. at 1.