The accelerating pace of artificial intelligence innovation illustrated by ChatGPT, Bard, and other applications that have captured the world’s attention bring the promise of better and more effective tools on which employers will increasingly rely to make decisions about applicants and employees. Although lawmakers at the federal, state, and local levels are just beginning to grapple with possible new laws concerning this technology, regulators are keenly focused on how current laws apply to this technology. For example, the use of artificial intelligence and automated systems in employment decision-making is a strategic enforcement priority for the Equal Employment Opportunity Commission (“EEOC”). Last week, the agency issued questions and answers on the use of AI in compliance with Title VII of the Civil Rights Act of 1964 (the “Guidance”). The agency previously issued similar guidance on complying with the Americans with Disabilities Act when using such tools.
Understanding artificial intelligence and automated systems
Employers should understand the Title VII risks associated with a growing number of commercial solutions offering AI and automated systems capabilities. That understanding includes knowledge of the relevant terminology in the first instance. To that end, the Guidance clarifies that:
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