The US Equal Employment Opportunity Commission (EEOC) recently released a draft of its new Strategic Enforcement Plan (SEP), which outlines its priorities for addressing discrimination in the workplace over the next four years.
playbook, Posted in Federal Register in januaryindicates that the agency will look for discrimination caused by artificial intelligence (AI) tools.
said Andrew M. Hinshaw & Culbertson LLP in Fort Lauderdale, Florida.
According to the EEOC, technology that could lead to discrimination may include:
- Software that involves algorithmic decision making or machine learning.
- Automated recruitment, selection, production and performance management tools.
- Other existing or emerging technological tools used in hiring decisions.
Over the past decade, the use of artificial intelligence in the workplace has skyrocketed. Nearly 1 in 4 organizations use AI to support HR-related activities, According to the 2022 survey by the Society for Human Resource Management (SHRM). Nearly 80 percent of these companies use artificial intelligence for recruiting and staffing purposes.
AI software can source, recruit, evaluate, and communicate with job candidates more efficiently. Employers have also taken advantage of these tools to support employees with learning, performance appraisal, benefit registration, and more.
“But, [AI software] It may run counter to non-discrimination laws if systems reject—whether intentionally or unintentionally—candidates based on protected characteristics such as age or gender,” Gordon said.
Cases of discrimination related to artificial intelligence
In May 2022, it was released The EEOC issued the directive Focused on preventing bias against applicants and employees with disabilities.
Employers must have a process in place to provide reasonable accommodations when using algorithmic decision-making tools, the guidance says. Without proper safeguards, some groups of workers may be excluded from consideration for a job or promotion.
in 2022, EEOC sued three integrated companies offering English tutoring services to students in China under the “iTutorGroup” brand, claiming to have programmed their online programs to automatically reject more than 200 older applicants.
The lawsuit came four years later Tech giant Amazon has abandoned its AI recruiter Upon discovering that it discriminates against women.
Additional takeaways from the draft
The SEP noted that the EEOC remains understaffed and underfunded relative to the number of fees it receives each year. To address this deficiency, the agency will prioritize the claims most likely to result in the determination of reasonable cause.
Some areas of focus include:
- Pregnancy discrimination.
- Pay inequality.
- Malpractice in recruiting and hiring.
- Discrimination related to current events.
- Vulnerable populations, including LGBTQ and low-wage workers.
- Industries that lack diversity, such as construction and technology.
- Vaccine accommodations, medical inquiries, and pandemic-related stereotypes.
The report indicated that the agency will continue to play a relatively active role in carrying out its mission, including with the intensification of investigations and lawsuits.
“The EEOC has stated that it will look at broad patterns of discrimination — something they’ve focused on for a while but haven’t looked at much until recently,” said Stephen Baskoff, CEO of Employment Innovations coaching in Atlanta. “Given the wide range of issues related to protected classes…it is clear that the EEOC is taking an ambitious approach and looking for large claims.”
Paskov, a former EEOC litigator, noted that employers must ensure their practices remain consistent to avoid discrimination lawsuits. The best way to do this is to enforce clear and consistent standards of behavior.
“If you view the cases as completely legal and focus only on checking the boxes for compliance, you may miss the bigger picture, which is getting people to focus on the importance of behavioral standards and adherence to company values,” he said. “This will allow you to prevent, detect and fix problems before they arise and avoid risks more easily.”
Paskov added that getting employees to understand their company’s standards of conduct is key.
“Let people see that sticking to consistent standards is how we’re going to do better in difficult times,” he explained. To do it the right way, don’t put this in the EEOC’s purview; the way you act will help. [companies] Work efficiently with the best talent.”
Public comments on the draft SEP must be received by February 9, 2023.