AccelPro | Employment & Labor Law
AccelPro | Employment Law
On the EEOC and AI in the Workplace
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On the EEOC and AI in the Workplace

With Jim Keaney, Senior Associate at Sandberg Phoenix | Interviewed by Matt Crossman

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Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today we’re featuring a conversation about the EEOC and AI in the workplace. Our guest is Jim Keaney, a senior associate at Sandberg Phoenix. 

Keaney walks us through the EEOC’s Artificial Intelligence and Algorithmic Fairness Initiative. Keaney says the EEOC has taken a broad view of technology because it changes so quickly and so often, and the law often has a hard time keeping up.

“The main takeaway is for employers to talk to the software providers, ask questions, ask hard questions.” That way, even if you make missteps along the way, the EEOC appears willing to take your efforts into consideration. “The more of a due diligence background paper trail you can develop, the more likely I think you’re not going to have as much of a headache from the EEOC on the issue,” he says.


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TRANSCRIPT

I. WHAT THE EEOC GUIDANCE ON AI COVERS

Matt Crossman, Host: The EEOC has launched what it calls the Artificial Intelligence and Algorithmic Fairness Initiative.

As part of this initiative, the EEOC published guidance aimed to prevent workplace discrimination in connection with the use of automated or algorithmic systems that draw upon artificial intelligence technology. Broadly speaking, what does that guidance address that HR execs and employment attorneys need to know?

Jim Keaney: In the big picture, the guidance provides a high-level view of the EEOC’s position on this issue, or common questions of the use of AI in the employment context and how that fits into this concern about disparate impact. 

Disparate impact is unintentional discrimination or discriminatory patterns or practices that arise from what otherwise appears to be facially neutral criteria or selection procedures. 

Under the law, it has three different layers to it, and it’s important to know what those layers are to understand what this guidance does and does not address.

First: Is there an employment practice that has a disparate impact on one of these protected categories?

The second layer to that is, if there is that disparate impact, is the practice job related and consistent with business necessity?

And even if it is job related and consistent with business necessity, is there another alternative way to reduce or eliminate that discriminatory impact—another practice that could be done? So this guidance does not address those really hard and complicated second and third layers in terms of what’s consistent with business necessity, what’s job related, and how do we figure out alternatives?

This is just a high level, what do we view as far as this first question of figuring out whether there’s a disparate impact in using this technology. So it just scratches the surface, but I think the guidance stands for the proposition that the EEOC sees the use of AI as completely fair game, and employers and business executives need to be aware of their use of it and be proactive in terms of controlling and understanding the impacts of the use of that technology.

MC: One of the challenges of this is AI is really complicated. I was surprised at how wide the EEOC’s definition of the use of AI was. It goes far beyond screening resumes for keywords, which frankly is what most people think of when they think of AI and hiring. What other systems or applications is the EEOC talking about here?

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AccelPro | Employment & Labor Law
AccelPro | Employment Law
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