By: Edward Schenk & Yiorgos L. Koliopoulos
Federal and state civil rights and anti-discrimination laws prohibit employment discrimination based on race, color, national origin, religion, sex, disability, age, genetic information, and other protected characteristics. The rapid progression and use of Artificial Intelligence (AI) is changing the landscape of technology that employers use in their employment practices. In this latest chapter of anti-discrimination law, the Equal Employment Opportunity Commission (EEOC) recently released its guidance on AI, 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” (AI Guidance).
The AI Guidance should cause employers to assess AI tools used in employee recruitment, career advancement, and employee retention practices. Doing such an assessment will help employers to evaluate whether AI tools they use could create liability under Title VII and other anti-discrimination laws based on the possibility of unintended discriminatory biases inherent in certain AI technologies.