Table of Contents
Table of Contents
Introduction
The world of work is constantly evolving, with artificial intelligence (AI) increasingly playing a vital role in employment practices. Last week, in a much-anticipated move, the Equal Employment Opportunity Commission (EEOC) released a groundbreaking technical assistance document. This provides employers with valuable guidance on the application of AI tools in compliance with Title VII of the Civil Rights Act of 1964.
EEOC Guidance on Employment Selection
Understanding Title VII and AI
Title VII prohibits workplace discrimination on the basis of race, color, religion, sex, or national origin. In recent years, the rise of AI tools used in employment practices, such as resume scanners and video interviewing software, has led to new challenges and concerns about ensuring compliance with Title VII. The EEOC’s latest guidance is set to address these concerns, assisting employers in effectively utilizing AI technology in a manner that ensures equal opportunities for all applicants.
The Past and Present EEOC Guidance
The new document, titled “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964,” follows the EEOC’s prior guidance on the use of AI tools and the Americans with Disabilities Act from May 2022.
This new guidance serves as a critical tool for employers to assess the impact of AI systems on employment selection procedures. Prior to this, employers have primarily been left to self-regulate their use of AI technology, creating potential vulnerabilities in terms of Title VII compliance.
The EEOC’s Suggestions on AI and Adverse Impact
To mitigate these vulnerabilities, the EEOC suggests that employers can evaluate whether a selection procedure negatively impacts a particular protected group. This could be done “by checking whether use of the procedure causes a selection rate for individuals in the group that is ‘substantially’ less than the selection rate for individuals in another group.”
The Four-Fifths Rule in Assessing Adverse Impact
Employers could use the “four-fifths rule” to assess the adverse impact. This rule states that if the selection rate for a protected group is less than 80% of the selection rate of another group, it may signal potential discrimination. However, the EEOC cautions that the four-fifths rule should not be used in isolation, emphasizing that it is not always a reasonable substitute for a test of statistical significance.
Evaluating AI Tools for Potential Risk
Even if an AI tool was developed by a third-party vendor, employers are encouraged to assess their potential risks. If the use of such a tool disproportionately impacts individuals based on their race, color, religion, sex, or national origin, or any combination of these traits, it could be seen as a violation of Title VII unless the employer can demonstrate that the tool’s use is “job related and consistent with business necessity.”
The Ever-Evolving AI Landscape and the EEOC
The realm of AI and algorithmic decision-making is rapidly evolving. The EEOC’s new guidance document marks a significant step towards addressing the challenges posed by these advancements. As we continue to navigate this digital frontier, we will closely monitor any additional EEOC guidance relating to AI, as well as any ensuing enforcement actions.
Conclusion
While AI tools promise efficiency and scalability, it’s paramount to understand their potential impact on employment practices and Title VII compliance. This guidance serves as a reminder for employers to stay informed and proactive in evaluating AI technology’s role in their hiring procedures. However, the guidance serves as a general overview of the topic, and specific situations may necessitate expert advice. Overall, the new EEOC guidance presents an exciting step forward in the intersection of AI and employment law. As AI continues to become more prevalent in employment practices, this guidance will undoubtedly become an invaluable resource for employers navigating these complex legal waters.
Disclaimer
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
What is the purpose of the new EEOC guidance on AI in employment selection?
The purpose of the new EEOC guidance is to provide employers with clear directives on how to apply artificial intelligence (AI) tools in employment selection procedures, ensuring compliance with Title VII of the Civil Rights Act of 1964.
What does Title VII of the Civil Rights Act of 1964 entail?
Title VII prohibits workplace discrimination on the basis of race, color, religion, sex, and national origin. This means employers must ensure all employment practices, including the use of AI, do not discriminate against these protected classes.
How can employers evaluate the adverse impact of AI in selection procedures?
Employers can evaluate the adverse impact of AI on a particular protected group by checking if the use of AI causes a selection rate for individuals in the group that is substantially less than the selection rate for another group. The EEOC also suggests the use of the “four-fifths rule,” but it shouldn’t be the only measure used.
What is the “four-fifths rule?”
The “four-fifths rule” is a guideline for assessing potential discrimination. If the selection rate for a protected group is less than 80% of the selection rate of another group, this might signal potential discrimination. However, the EEOC recommends that it not be used as the sole measure of potential discrimination.
What should employers do if they find out that an AI tool is having an adverse impact?
If an AI tool is found to have an adverse impact on individuals based on race, color, religion, sex, or national origin, it could be in violation of Title VII. The employer must then show that the tool’s use is “job related and consistent with business necessity.” If this can’t be proven, they should stop using the tool and seek expert advice.
