U.S. enforcement agencies have largely been silent on the use of AI and machine learning in employment decisions. In 2016, the EEOC held a public meeting on implications of big data in the workplace, but it has not issued regulations or guidance on how such technology should be used by employers. In addition, no federal circuit has adopted a uniform approach for finding disparate impact discrimination.
Regulations or guidance on the horizon? Commissioner Sonderling said, “As a public servant I am committed to ensuring that AI helps eliminate rather than exacerbate discrimination in the workplace, and as an EEOC Commissioner I am committed to providing clarity for those who have long been asking.”
“Carefully designed and properly used, I believe that AI has the potential to advance diversity, equity and inclusion in the workplace by mitigating the risk of unlawful discrimination,” Sonderling said. “Numerous studies have shown the ways that employment decisions are vulnerable to bias on the part of hiring professionals.”
Cortnie Abercrombie, CEO and Founder of AI Truth, noted how AI can help companies more effectively recruit beyond their traditional reach, a significant development for competing in the war for talent during and post-COVID.
Inadvertent bias can find its way into job descriptions, she observed, given that “the higher up the ladder a job is, the more likely its description was written by a male as opposed to a female and a white person versus a person of any other ethnic background.” Age, nationality, and many other backgrounds may also factor in. “If you want to think about 'cloning' your best employees, make sure your best employees are not a homogeneous group.”
Looking ahead: There is no timetable for potential guidance or regulations, and the EEOC will flip to a Democratic majority in July of next year. It remains to be seen which approach a Democratic EEOC will take. HR Policy will continue to engage with the EEOC and other government regulators on this emerging issue.
