TECHNOLOGY POLICY: As Companies Target Greater Efficiency and Diversity with New Technologies, Policy Backlash Takes Shape

January 07, 2022

The workforce shortage, diversity goals, and efforts to increase efficiency and reduce costs have created conditions ripe for the adoption and exploration of new technologies used throughout the employment lifecycle. However, lawmakers and the Biden administration are eyeing regulation in this space to stop potential abuses—particularly discriminatory outcomes.

Last November, the Equal Employment Opportunity Commission launched an initiative to ensure that artificial intelligence and algorithmic decision-making tools “do not become a high-tech pathway to discrimination,” according to Chair Charlotte Burrows. The initiative “aims to guide applicants, employees, employers, and technology vendors in ensuring that these technologies are used fairly,” according to the EEOC. The Commission plans to issue technical assistance to provide guidance on algorithmic fairness and the use of AI in employment decisions, though the timing is unknown.

Last month, the White House launched an initiative to develop an “AI Bill of Rights,” with an emphasis on eliminating bias and “freedom from pervasive or discriminatory” workplace monitoring. In an op-ed, White House Office of Science and Technology Policy Director Eric Lander and Deputy Director Alondra Nelson noted such a right would likely include notification requirements, protections against bias, “freedom from pervasive or discriminatory surveillance and monitoring in your… workplace; and your right to meaningful recourse if the use of an algorithm harms you.” HR Policy plans to submit comments on the first installment of the initiative, an RFI on the use of biometric technologies.

Employer data practices under microscope as Federal Trade Commission considers joins the fray: The FTC is considering rulemaking “to curb lax security practices, limit privacy abuses, and ensure that algorithmic decision-making does not result in unlawful discrimination.”

The state of the states: In each of these areas, the states have been very active in considering—and passing—legislation, a trend that will continue into 2022. One positive signal is the exclusion of HR data in key comprehensive consumer privacy bills passed by Virginia and Colorado last year. On the other hand, New York City Mayor Bill DeBlasio signed a measure aimed at combating discrimination associated with the use of automated decision tools in hiring and promotion decisions, with several audit and reporting requirements for employers and numerous shortcomings. Meanwhile, the growing patchwork of both data privacy and AI-focused bills will provide a greater incentive for federal legislators to focus on regulating in this area.