Written by Anne E. Baggott and Abbey M.B. Lee
On May 18, 2023, the Equal Employment Opportunity Commission issued a technical assistance document focused on preventing discrimination in employment selection procedures. The nonbinding guidance cautions employers that artificial intelligence (AI) in algorithms, commonly found in resume scanners, automated reviews of personality tests, virtual assistants and chatbots, can unfairly impact candidates in a protected class in violation of Title VII. It also warns that employers may be liable for Title VII violations even when the employer relies on an outside vendor’s algorithm or other AI. The employer may be held responsible for agents’ actions, including software vendors, if the employer has given them authority to act on its behalf.
Disparate impact occurs when neutral tests or selection procedures disparately impact candidates on the basis of race, sex, national origin or other protected categories. Employers can mitigate risk of prohibited discrimination by assessing selection rates for individuals in a particular protected group. Employers should monitor algorithmic decision-making through statistical analyses and routine testing for potential adverse impact. Businesses should also check with outside vendors to ensure their systems comply with Title VII.
For advice on your particular situation, contact a Halbrook Wood attorney.