EEOC’s nonbinding guidance focuses on an employer’s use of AI in selection procedure decisions such as hiring, promotion, and firing. Guidance addresses potential disparate or adverse impact resulting from the use of such tools and does not address issues of intentional discrimination via the use of AI-driven tools in making employment selection procedures.

On May 18, 2023, the U.S. Equal Employment Opportunity Commission (EEOC or “the Commission”), the federal agency charged with administering federal civil rights laws (including Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA), among others), issued a “technical assistance 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.” EEOC technical assistance documents are not voted upon or otherwise approved by the full Commission, and are not intended to create new policy, but rather to apply existing law and Commission policy to new or specific fact patterns. They do not have the force and effect of law, and do not bind the public in any way—rather, they purport to provide clarity with regard to existing requirements under the law. This latest technical assistance document, addressing artificial intelligence (AI) employment selection procedures under Title VII, follows on the Commission’s May 2022 guidance...

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