EEOC Considering Guidance on AI Tools Beyond ADA, Official Says

The U.S. Equal Employment Opportunity Commission (EEOC) is examining potential discriminatory implications of the use of automated systems and artificial intelligence (AI) to make employment decisions beyond the Americans with Disabilities Act (ADA), an EEOC chief counsel office said.

Speaking at Ogletree Deakins’ 2023 National Workplace Strategies Seminar in San Diego, California, Andrew Rogers, chief counsel to EEOC Commissioner Andrea Lucas, stated: “There are a lot of open questions about the use of AI, but the use of it to make employment decisions trigger foreseeable risk when it comes to general federal employment requirements, including under Title VII [of the Civil Rights Act] and the ADA.”

The EEOC has made scrutinizing the use of automated systems and AI by employers a priority and, in May 2022, issued technical guidance that warned that applications of such tools may violate the ADA.

“That is obviously an initial step and there is probably more to come on the ways in which AI is implicated other than under the ADA,” Rogers stated.

Ogletree Deakins’ 2023 Strategies and Benchmarks for the Workplace: Ogletree’s Survey of Key Decision-Makers indicated that 20.7 percent of employers “use elements of artificial intelligence for recruiting and hiring purposes,” a two percent increase from last year’s survey. Yet, EEOC Chair Charlotte Burrows has recently stated that more than 80 percent of employers may be using AI tools to perform work or make employment-related decisions.

In April 2023, the EEOC joined three other federal agencies to pledge to enforce federal laws to “promote responsible innovation” with the growing use of automated decision-making and AI tools by employers. The EEOC enforces a host of federal antidiscrimination laws beyond Title I of the Americans with Disabilities Act of 1990 (ADA), including Title VII, Sections 102 and 103 of the Civil Rights Act of 1991, and the Equal Pay Act of 1963.

Key Takeaways

Employers are increasingly using automated decision-making tools and AI to perform tasks and make employment-related decisions, including screening job candidates. However, the EEOC has made it clear that these tools could implicate federal antidiscrimination laws and regulations. Employers may want to review their current use of such tools and the extent to which those tools have been audited.

Ogletree Deakins will continue to monitor developments with the use of automated decision-making tools and AI and will provide updates on the Technology, Cybersecurity and Privacy, Diversity and Inclusion, and Employment Law blogs as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.