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As 2023 winds down to a close, the use of artificial intelligence (AI) by employers shows no sign of slowing down. Rather, employers should prepare for an increased use and presence of AI in employment decision-making, as well as employee engagement with their employers.
Throughout 2023, an increasing number of states and cities began limiting the use of AI in employment decision-making, and the EEOC’s draft Strategic Enforcement Plan likewise outlined the EEOC’s intended approach with respect to employers’ use of AI. As the year progressed, both states and the federal government continued to crack down on the use of AI in employment in cases where its use resulted in intentional discrimination or discriminatory impact.
More specifically, multiple states proposed legislation in 2023 addressing individuals’ data privacy rights, with some of this legislation including provisions addressing the use of AI in the employment context. In Washington, for example, the People’s Privacy Act sought to prohibit covered entities from, among other things, “the use of artificial intelligence-enabled profiling to make decisions that produce legal effects or similarly significant effects concerning individuals” (including with respect to employment opportunities). Although this specific legislation has not passed through committee, this governmental activity signals that states are increasingly primed to legislate this intersection of technology and employment law.
Similarly, the EEOC’s...
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