In the evolving landscape of employment practices, the use of Artificial Intelligence (AI) tools in hiring decisions has brought new considerations to the forefront. As our reliance on these tools grows, the question arises: could AI screening tools inadvertently lead to unlawful discrimination in hiring?

The Equal Employment Opportunity Commission (EEOC), in an effort to provide clarity on this issue, has recently published a document entitled “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964.” This document offers guidelines designed to prevent potential discrimination against individuals seeking employment. It signifies the EEOC’s ongoing commitment to making sure that emerging technologies are used in a manner that complies with federal EEO laws. The guidelines serve to educate all stakeholders – employers, employees, and others – about how these laws apply to the employment decisions facilitated by software and automated systems.

The guidelines explain that employers need to evaluate whether an algorithmic decision-making tool they use disproportionately affects a protected group. This can be determined by examining whether the tool’s use results in a significantly lower rate of selection for individuals of a protected group compared to other groups. If this is the case, the tool would be in violation of Title VII, unless the employer can justify that the discrepancy is tied to the job requirements and aligned with business needs.

Interestingly, the guidelines also clarify that the employer remains accountable for any disparate impact a decision-making tool might have on a protected class, even if the tool was developed by an external vendor. They further encourage employers to continuously monitor any algorithmic decision-making tools they use to ensure they are compliant with Title VII’s prohibition against disparate impact discrimination.

The EEOC’s vigilant monitoring of potential discrimination due to the use of AI in hiring, along with the release of guidelines that provide clarity on when AI can result in disparate impact discrimination, are seen as progressive steps in safeguarding employee rights​¹​.

1. “Preventing Employment Discrimination in the Age of AI: EEOC Offers Guidance,” published by Ty Hyderally of Hyderally & Associates P.C. on June 7, 2023.