On May 12, 2022, more than six months after the Equal Employment Opportunity Commission (“EEOC”) announced its Initiative on Artificial Intelligence and Algorithmic Fairness,[1] the agency issued its first guidance regarding employers’ use of Artificial Intelligence (“AI”).[2]
The EEOC’s guidance outlines best practices and key considerations that, in the EEOC’s view, help ensure that employment tools do not disadvantage applicants or employees with disabilities in violation of the Americans with Disabilities Act (“ADA”). Notably, the guidance came just one week after the EEOC filed a complaint against a software company alleging intentional discrimination through applicant software under the Age Discrimination in Employment Act (“ADEA”), potentially signaling more AI and algorithmic-based enforcement actions to come.
The EEOC’s AI Guidance
The EEOC’s non-binding, technical guidance provides suggested guardrails for employers on the use of AI technologies in their hiring and workforce management systems.
Broad Scope. The EEOC’s guidance encompasses a broad-range of technology that incorporates algorithmic decision-making, including “automatic resume-screening software, hiring software, chatbot software for hiring and workflow, video interviewing software, analytics software, employee monitoring software, and worker management software.”[3] As an example of such software that has been frequently used by employers, the EEOC identifies testing software that provides...
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