Adding to the growing commentary on artificial intelligence (AI) in the employment context, the Equal Employment Opportunity Commission (EEOC) recently issued a technical assistance document.

Titled “Select Issues: 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 agency focuses on the assessment of 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 that is prohibited by Title VII, often referred to as “disparate impact” or “adverse impact.”

In 1978, the EEOC adopted the Uniform Guidelines on Employee Selection Procedures (Guidelines), which provide employers with a road map for how to determine if their tests and selection procedures are lawful for purposes of Title VII disparate impact analysis.

The Guidelines would apply to algorithmic decision-making tools when they are used to make or inform decisions about whether to hire, promote, terminate, or take similar actions with respect to applicants or current employees, the agency said.

Employers can assess whether a selection procedure has an adverse impact on a particular protected group by checking whether use of the procedure causes a selection rate for individuals in the group that is “substantially” lower than the selection rate for individuals in another...

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