On May 18, 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced the release of its second set of guidance regarding employers’ use of artificial intelligence (“AI”).[1] The EEOC’s technical, non-binding guidance outlines key considerations that, in the EEOC’s view, help ensure that automated employment tools do not violate Title VII of the Civil Rights Act of 1964 (“Title VII”).[2]
This guidance comes on the heels of reports that the EEOC is training staff on how to identify discrimination caused by automated systems and AI tools,[3] and the EEOC’s joint statement with officials from the Department of Justice (“DOJ”), the Consumer Financial Protection Bureau (“CFPB”), and the Federal Trade Commission (“FTC”) emphasizing the agencies’ commitment to “vigorously” enforce existing civil rights laws against biased and discriminatory AI systems.[4]
AI and Title VII Guidance
The EEOC’s guidance centers on the potential risk that, in the EEOC’s view, AI tools used in employment decision making could give rise to disparate impact under Title VII. The guidance provides that a disparate impact could arise if an automated tool disproportionately excludes individuals based on protected characteristics, without being job related or consistent with business necessity. Below we summarize the key aspects of the EEOC’s guidance.
5 Key Takeaways for Employers:
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