2023 is rapidly becoming the year of AI policy and regulation. A particular focus of regulatory concern relates to AI impacts on employees, and the U.S. Equal Employment Opportunity Commission (EEOC) is not sitting on the sidelines. On January 31, 2023, the EEOC held a public hearing to examine the use of automated systems, including artificial intelligence (AI), in employment decisions. This hearing, titled “Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier,” continues the work of the Artificial Intelligence and Algorithmic Fairness Initiative, which was launched in 2021 by the EEOC. Through this initiative, the EEOC has already published a guidance titled “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees.” Below are a few high-level takeaways from the hearing:

• Auditing: Many panelists discussed the importance of auditing AI tools, and considered what role such audits should have, including whether such audits should be recommended or required, and whether they should be through a third-party, self-conducted, or provided by the EEOC. Many panelists stressed the importance of frequent audits, as algorithmic tests are constantly changing (or “learning”).
• Considerations surrounding data used for AI and training: Several panelists discussed the importance of data in AI, including considerations related to the source, type, and amount of...

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