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EEOC Prioritizes Discriminatory Effects of Artificial Intelligence

By Salvatore G. Gangemi on February 6, 2023
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EEOC Prioritizes Discriminatory Effects of Artificial Intelligence

Last month, the Equal Employment Opportunity Commission (EEOC) released its Draft Strategic Enforcement Plan for 2023- 2027 (SEP), and invited the public to submit comments by February 9, 2023.

The EEOC continues to emphasize the elimination of barriers in recruitment and hiring, and seeks to prioritize its consideration of policies and practices that incorporate artificial intelligence (AI).

While the Draft Strategic Enforcement Plan also lists more traditional tools as impacting hiring and recruitment (e.g., job advertisements, limiting access to training, etc.), by listing AI and automation tools first, the EEOC highlights its concern over AI and its increasing use (and potential abuse) by employers. During recent public hearings, the EEOC heard testimony about the need for oversight and auditing of AI tools, which, according to testimony and studies, can result in greater discrimination than human-based tools.

The Draft SEP is not the first time the EEOC has considered AI in employment decision making. In May 2022, the EEOC issued guidance on the impact of AI on applicants and employees with disabilities – The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees. More recently, the EEOC has emphasized that AI can also facilitate discrimination on the basis of age, race and sex.

Last September, we blogged about the recent New York City law regulating the use of AI in employment decisions, which took effect on January 1, 2023, but with its enforcement subsequently deferred to April 15, 2023 due to the high number of public comments submitted to The Department of Consumer and Worker Protection (DCWP), the law’s enforcement authority.

Although AI permits the screening of thousands of employment applications in a fraction of the time it would take for a human, certain “filters” that reject individuals from consideration based on seemingly neutral (or not so neutral) factors could lead to intentional discrimination.

For example, it would appear to be easy to use AI to screen out applicants, who have been out of school for a long time or over a certain age. Consequently, without more oversight these new tools can continue to perpetuate old problems.

No employer should consider the use of AI without first learning how these tools work, and how they impact different classes of individuals. In addition, employers should keep in mind their obligation to consider requests for reasonable accommodations on the use of AI.

We will keep you informed of further developments in this area. If you have any questions, please contact Salvatore Gangemi, or any other attorney in Murtha’s Labor and Employment Group with whom you have previously worked.


Photo of Salvatore G. Gangemi Salvatore G. Gangemi

Salvatore G. Gangemi, a partner at Murtha Cullina, is a veteran labor and employment lawyer with nearly 30 years of litigation and counseling experience.

Employers from across the industry spectrum, including established companies in the senior living and health care fields; manufacturing, construction…

Salvatore G. Gangemi, a partner at Murtha Cullina, is a veteran labor and employment lawyer with nearly 30 years of litigation and counseling experience.

Employers from across the industry spectrum, including established companies in the senior living and health care fields; manufacturing, construction, retail and service firms; and emerging companies, seek Sal’s legal counsel to navigate today’s complex local, state and federal employment laws. His practice includes resolving disputes; advocating in courts and before administrative agencies; counseling on employment-related issues arising from acquisitions; and guiding clients in both long-range strategy and day-to-day administration of their workplaces and employees.

At the federal level, Sal brings extensive experience in OSHA investigations, audits and proceedings; the Fair Labor Standards Act (FLSA); Title VII discrimination matters; the Age Discrimination in Employment Act (ADEA); the Americans with Disabilities Act (ADA); and the Family Medical Leave Act (FMLA). He is also well-versed in state and local employment regulations.

Sal regularly represents clients in matters before the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor and other federal agencies. On the state level, he appears before the New York State Division of Human Rights; the New York City Commission on Human Rights; the Connecticut Commission on Human Rights and Opportunities; the Connecticut Department of Labor; and the New York State Department of Labor. He has litigated cases involving misappropriation of trade secrets, restrictive covenants, breach of employment contract, fiduciary duty and other work-related common law claims.

Clients rely on Sal’s advice on routine human resources matters that arise in their businesses, including requests for reasonable accommodation for those with disabilities, family and medical leave issues, hiring and termination, and wage and hour concerns. Known for his proactive approach to identifying issues before they escalate, he conducts compliance training on sexual harassment prevention and other topics, performs worker classification practice and policy audits, and drafts employment policies and agreements. Sal shares his knowledge of the ever-evolving employment law landscape by speaking at events, conducting continuing legal education seminars and writing articles for a variety of publications.

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  • Posted in:
    Employment & Labor, Technology and AI
  • Blog:
    Employment Law Perspectives
  • Organization:
    Murtha Cullina LLP
  • Article: View Original Source

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