On May 18, 2023, the Equal Employment Opportunity Commission (EEOC) released Technical Assistance on the use of advanced technologies in the workplace titled Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964 (“TA”).    

A TA is not regulatory in any means, but it is an explanation of what the EEOC approach will be when it comes to AI use in the workplace.  Initially, the EEOC focused on the issues of AI and the disabled.  However, as ChatGPT and other AI systems come online, the EEOC recognizes the speed of transformation and is providing information as to the interplay of AI and EEO laws.

For this technical assistance, the EEOC defines the application of the TA:

Employers sometimes rely on different types of software that incorporate algorithmic decision-making at a number of stages of the employment process. Examples include: resume scanners that prioritize applications using certain keywords; employee monitoring software that rates employees on the basis of their keystrokes or other factors; “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements; video interviewing software that evaluates candidates based on their facial expressions and speech patterns; and testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or on a more traditional test. Each of these types of software might include AI. In the remainder of this document, we use the term “algorithmic decision-making tool” broadly to refer to all these kinds of systems. 

The TA covers not only sophisticated tools like video systems that rate applicants on their appearance and chat boxes that monitor keystrokes, but basic tools such as ranking systems within the applicant tracking system (ATS).  

The TA uses seven questions for guidance as to the approach of the monitoring of AI tools and the relationship to the Uniform Guidelines for Employee Selection Procedures (Guidelines) and confirms that employers need to follow the guidelines when implementing these tools. 

Specifically, as Seyfarth Shaw explains, “The EEOC’s expectation is that employers will assess whether a selection procedure has an adverse impact on a particular protected group. The assessment requires a comparison between the selection rates for individuals in a protected group to those not in the protected group. Significant differences between the two groups must be remedied, unless the employer can show that the selection procedure is job related and consistent with business necessity.”

Further, the TA makes it clear that the tools themselves could come under the scrutiny of the EEOC and be held liable for damages.
Therefore, employers need to inventory their selection tools, whether applicant tracking systems or talent management systems.  Employers should know:

1. If there is AI embedded in the tool;
2. If there is, what studies has the vendor done to see the disparity impact of the tool;
3. Even if the vendor has done studies, has the employer established a monitoring system to ensure that disparity is not significant; and
4. If there is another tool that could be used that has lesser disparity when being used.

Generally, under the guidelines, any selection tool must be validated (e.g. tests).  Generative AI cannot be validated by its nature of continuous learning.  Therefore, employers need to constantly monitor the use of it.  The EEOC may also make the employer liable for the tool’s missteps.  Therefore, any agreement with a vendor should have joint liability and/or a hold harmless or indemnification clause relying on the vendor’s expertise if the use goes sidewise.

Finally, the EEOC makes it clear that the TA is guidance for employers – not regulatory in any way. Employers need to take action as the approach of the EEOC will be as the TA provides.   

ASE Connect

Webinar: AI 101 - The Basics
June 30, 2023
1:00 p.m. – 2:30 p.m.   

Generative Artificial Intelligence (AI) usage is growing faster than anyone expected.  Regulation is sparse and the impact of AI on work is great.  This session, led by Dan Kuang, one of the leading analysts in the AI field, covers what AI is, how it works, how it is embedded and used in various HR programs, how to monitor it, and how it will impact HR in the future.  Don’t miss this fast-moving and informative session on the impact of AI. 

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Source:  Seyfarth Shaw 5/19/23, Law360 5/19/23