Senate Democrats Demand EEOC Guidelines on Facial Recognition Technologies

November 02, 2018

Seven Democratic senators have asked the EEOC, Federal Trade Commission, and FBI to provide information on their respective policies regarding the use and regulation of facial analysis technologies, saying “their use may violate civil rights laws and could be unfair and deceptive.”

The letter to the EEOC requested the Commission develop guidelines for employers on the "fair use of facial analysis technologies and how this technology may violate anti-discrimination laws,” including Title VII, the Equal Pay Act, and the Americans with Disabilities Act.  Specifically, they asked what employers must do to demonstrate job relatedness should a case of disparate impact be brought and how the Commission is approaching the validation of employment selection procedures incorporating this technology.

Senators raise FTC concerns: The letter to the Federal Trade Commission noted that "without information about the biases in a [facial recognition] technology or the legal and ethical risks attendant to using it, good faith users may be unintentionally and unfairly engaging in discrimination.  Moreover, failure to disclose these biases to purchasers may be deceptive under the FTC Act."

FTC to hold hearings November 13-14: The Federal Trade Commission announced it will examine how consumers are being protected with respect to the use of algorithms, artificial intelligence, and predictive analytics in business decisions and conduct.  On the agenda are questions being raised by HR Policy members when evaluating software incorporating artificial intelligence including:

  • What are the advantages and disadvantages of developing technologies for which the basis for the results can or cannot be determined?

  • What criteria should determine when a “black box” system is acceptable, or when a result should be explainable?

Our Recruiting Software Initiative has identified more than 100 companies involved in developing software for use by employers in assessing, evaluating, and selecting job candidates.  Both Congress and federal enforcement agencies appear to be taking notice, and we would anticipate their focus to intensify in the coming months.  The current regulatory regime governing employment recruitment and selection was written before the emergence of artificial intelligence in HR systems, and future policy developments in this field are inevitable.