Over the past several years, workplace artificial intelligence (“AI”) tools have matured from novel to mainstream. Whether facilitating attracting, screening, hiring, and onboarding job applicants or charting the career path or promotability of current employees, workplace AI tools will likely become more prevalent. Legislators and administrative agencies have taken note and are in various stages of examining and regulating these tools, with the primary goal of ensuring that they do not violate federal and state laws prohibiting workplace discrimination.
The Equal Employment Opportunity Commission (EEOC) is one of the federal agencies that is keenly aware of and has raised concerns about the potential of automated technologies to perpetuate the biases that humans may intentionally or unintentionally inject into hiring and employment decisions. In October 2021, the EEOC launched the Artificial Intelligence and Algorithmic Fairness Initiative in response to the increased use of AI in workforce management systems and hiring processes. According to the EEOC, the purpose of the initiative is “to ensure that the use of software, including [AI], machine learning and other emerging technologies used in hiring and other employment decisions comply with the federal civil rights laws that the EEOC enforces.”
Consistent with that initiative, on May 12, 2022, the EEOC issued its first guidance addressing the use of AI in making employment decisions. The guidance,...
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