On October 28, 2021, the EEOC announced an initiative to ensure that artificial intelligence (AI) and other emerging tools used in hiring and employment decisions comply with the federal civil rights laws that the agency enforces. It behooves employers to understand and heed the Commission’s new initiative.  This announcement is covered, with additional, information in a Seyfarth blog.

Some of the EEOC’s work may implicate employment screening companies. We know that at least in New York City, there was local legislation on AI in employment that was broad enough to have repercussions for background check companies.  There, New York City Councilmember (and majority leader) Laure Cumbo (D-Queens/Crown Heights),  introduced Intro. 1894-2020, which was heard on Nov. 13, 2020, in the Committee on Technology.  CDIA filed a letter of opposition with the committee in connection with the hearing.

Law 360 reported that EEOC Chair Burrows “discussed the agency’s plans to gather internal expertise, host listening sessions and issue technical guidance on how employers can ensure their use of hiring technology doesn’t run afoul of federal civil rights law.  She described a burgeoning market of tech products that promise to help employers find and hire the best candidates. But she warned that removing humans from the equation by using technology doesn’t necessarily mean that an algorithm or other tool will be free of human bias.”

As noted in the blog,

When the Commission declares an area to be a systemic discrimination priority, employers should take heed. Employers who utilize artificial intelligence, algorithmic decision-making tools, and other automated processes should evaluate their use to ensure no resulting bias. Likewise, when considering third party vendors, employers should ask what steps have been taken to ensure that the tools are compliant with employment. And during EEOC investigations, employers should be on the alert for requests that suggest the EEOC is interested in taking a closer look at the use of these tools. In sum, as business practices evolve with the technology, so too does the EEOC in its enforcement priorities.