On Thursday May 18, 2023, the Equal Employment Opportunity Commission (“EEOC”) released a new technical assistance document titled Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964. The document was released as a part of the EEOC’s Artificial Intelligence and Algorithmic Fairness Initiative and outlines considerations for incorporating automated systems into employment decisions. EEOC Chair Charlotte A. Burrows called the technical assistance document “another step in helping employers and vendors understand how civil rights laws apply to automated systems used in employment.”
The document assesses whether an employer’s selection procedures (the procedures it uses to make employment decisions such as hiring, promotion, and firing) “have a disproportionately large negative effect on a basis prohibited by Title VII.” Essentially, whether the employment practice has a disparate impact on the basis of race, color, religion, sex, or national origin, as protected by Title VII.
The document encourages application of the Uniform Guidelines on Employee Selection Procedures (the “Guidelines”) to determine if any tests or selection procedures, including the use of an algorithmic decision-making tool, are lawful under Title VII’s disparate impact analysis.
The Questions and Answers section of the document provides interesting insight. The EEOC takes the position that use...
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