Artificial Intelligence (AI) has become a mainstay of everyday life – for everything from texting (Autocorrect) to ordering food from a favorite app. For many Human Resources professionals, AI is an important component of the recruitment process, providing the ability to scan and sort/omit thousands of resumes without extensive labor. However, the Equal Employment Opportunity Commission (EEOC) Strategic Enforcement Plan (SEP), known as the “Artificial Intelligence and Algorithmic Fairness Initiative, reflects potential consequences for failing to monitor the use of AI in the workplace.
The EEOC previously released guidance on how to minimize discrimination when using AI. The current draft SEP was recently published in the Federal Register, with comments from the public open until February 9, 2023. Keep the following in mind based on its current language:
- The SEP is aimed at protecting a broad array of workers – not just those in “traditional” protected classes. Historically, legal discrimination has included discrimination based on protected classes such as race and gender (and, in more recent years – sexual orientation). The SEP sets forward that the review of AI will also focus on protecting immigrant and migrant workers, temporary workers, and individuals with arrest or conviction records. The EEOC is not creating new protected classifications – however, it appears to illustrate that the use of AI in a way that limits these classes is problematic.
- Consistency will likely mean less legal trouble. The SEP reflects that the EEOC will value employers who utilize consistency in their hiring processes and use AI. Based on this, I recommend creating a policy that memorializes how you vet candidates – including how you review the work of any AI tools. At the end of the day, human employees – rather than AI, will be forced to take responsibility for any discriminatory actions.
- Diversity is important. The SEP states that a lack of diversity in certain industries (i.e., tech) is “of particular concern.” Employers should therefore endeavor to make hiring and recruitment decisions that involve more – rather than less – pools of candidates (and making clear what exact job requirements – i.e., licenses and degrees – might be required of a particular position).
Feel free to reach out to me to discuss the SEP or your recruiting process.
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Theodora Stringham assists individuals, businesses, and organizations with growing successfully while minimizing liability. Focusing on real estate and personnel needs, Ms. Stringham executes sustainable plans for real estate development and employee matters. She provides comprehensive representation for everyday growth issues, including, but not limited to, re-zonings, site plan approvals, eminent domain/valuation concerns, employment discrimination, and disciplinary issues. Ms. Stringham’s scope of representation ranges from identifying potential liability and providing counseling/trainings, all the way through representation at trial.