2023 - Volume 2 - Summer - Flipbook - Page 10
Title VII protects employees and applicants from
discrimination on the basis of a “protected class” like
race, color, religion, sex, and national origin. See 42
U.S.C.A. § 2000e-2(a). This includes both intentional
and unintentional, or what is called “disparate impact”
or “adverse impact” discrimination. See 42 U.S.C.A. §
2000e-2(k). In the employment context, this refers to
an employment practice which appears neutral yet has
a discriminatory effect on a protected class. An employment practice, like a procedure for selecting which
candidates to hire, that results in disparate impact discrimination violates Title VII unless the procedure is
“job related for the position in question and consistent
with business necessity.” 42 U.S.C. § 2000(k)(1)(A)(i).
-Artificial Intelligence: Continued from page 9-
ferent areas touched by AI technology.
This heightened agency attention follows in line
with the Biden Administration’s push for a unified
federal approach to AI, which culminated in the
“Blueprint for an AI Bill of Rights” released in October 2022. Blueprint for an AI Bill of Rights: Making
Automated Systems Work for the American People.
One of the first agencies to envelope AI within its
regulatory purview was the EEOC (or the Commission). In 2021, the Commission launched an agencywide initiative “to ensure that the use of software, including artificial intelligence (AI), machine-learning,
and other emerging technologies used in hiring and
other employment decisions comply with federal civil
rights laws that the EEOC enforces.” EEOC Launches
Initiative on Artificial Intelligence and Algorithmic
Fairness. The EEOC explained that this “Algorithmic
Fairness” initiative would “examine more closely”
how technology like AI “is fundamentally changing
the way employment decisions are made.” Id.
The EEOC’s guidance examines this issue in several different ways.
What the EEOC considers a “selection procedure”
is quite broad. The EEOC notes that under Title VII
“any measure, combination of measures, or procedure”
counts as a “selection procedure” if it is “used as a basis for an employment decision.” With this expansive
definition as a guidepost, Title VII’s requirements apply to any range of AI tools used “to make or inform
decisions about whether to hire, promote, terminate, or
take similar actions” toward an applicant or employee.
In practice, this means that the EEOC considers a selection procedure to include all criteria used to make
any decision about an employee’s standing in a company—basically anything related to any decision made
from application to separation.
The Commission’s attention to the use of AI and
its technical guidance was covered in detail in Are
Your Applicant Screening Tools Violating the ADA?,
published earlier this year. ABTL Report, Winter
2023. While the Commission’s earlier guidance was
focused on the Americans with Disabilities Act, the
Commission’s recent guidance shows that it is continuing to work through how the use AI technologies applies to the full range of federal antidiscrimination employment laws.
The guidance also gives examples of AI selection
procedures that can create liability, many of which are
widely used, including:
Artificial Intelligence and Disparate Impact Discrimination
• 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 or
speech patterns; and
• Testing software that provides “job fit” scores
for applicants or employees regarding their personalities, aptitudes, cognitive skills, or per-
On May 18, 2023, the EEOC fulfilled another objective of its Algorithmic Fairness initiative when it
released the initiative’s second technical guidance document, this time analyzing the relationship between AI
technology and discrimination under Title VII of the
Civil Rights Act of 1964. EEOC Releases New Resources on Artificial Intelligence and Title VII. This
guidance focused on the disparate impact certain AI
tools may create when used as “selection procedures”
for hiring, promotion, and firing. 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.
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