EEOC Eyes AI-Based Hiring in Draft Strategic Enforcement Plan | Brownstein Hyatt Farber Schreck

The U.S. Equal Employment Opportunity Commission (EEOC) signaled its plan to broaden its enforcement efforts to include additional focus on artificial intelligence (AI) in the workplace. On Tuesday, Jan. 10, the EEOC published its draft Strategic Enforcement Plan (SEP) for 2023–2027 in the Federal Register and it includes updates that for the first time take into account “employers’ increasing use of automated systems, including artificial intelligence or machine learning,” to make hiring and recruiting decisions.

The ECEC’s SEP is the culmination of public input gathered via a series of listening sessions that occurred in the summer and early fall of 2022. In the final listening session held on Sept. 22, concerns about AI and other technology dominated the conversation. Worker advocates expressed concerns about hiring systems and hard-to-use technology inadvertently furthering discrimination. Employer advocates expressed the need for more clarity on how employers can and should use AI in hiring and recruiting decisions.

Within its subject matter priorities, the SEP points to discriminatory use of automated systems and AI as a hiring barrier. The EEOC says that it plans to monitor screening tools or requirements that disproportionality impact workers based on their protected status, including those facilitated by artificial intelligence or other automated systems, preemployment tests and background checks.

The EEOC is also holding a hearing on Jan. 31 for examining the use of automated systems and AI in employment decisions. The hearing will include a panel discission on the civil rights implications of AI and other automated systems for U.S. employees and job candidates. Additionally, the hearing will explore ways in which these technologies might further the interests of diversity, inclusion, accessibility and diversity.

The EEOC is seeking public comments on the SEP. Interested parties must submit comments by Feb. 9, 2023. If adopted, the 2023–2027 EEOC will replace its most recent plan that covered 2017–2021.

Brownstein has previously published a written alert discussing the steps employers should take to evaluate AI algorithms. We are currently working with employers that utilize AI in the hiring process to ensure that their systems are legally compliant. Given that the EEOC listed AI use in hiring as the first subject matter priority in the SEP, employers who use AI should take heed and vet their models.

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