We previously reported that disability advocates for many years had been asking for action with respect to the use of artificial intelligence (“AI”) tools, as it is estimated that approximately 80% of employers use some form of automated tool to screen candidates. To that end, on May 12, 2022, the U.S. Equal Employment Opportunity Commission (“EEOC”), in conjunction with the U.S. Department of Justice, issued guidance in a question and answer format to employers, employees and applicants on the use of artificial intelligence tools.   

As part of its strategic enforcement plan for the next several years, and to further the analysis of AI systems and their use, the EEOC held a public hearing on January 31, 2023, titled, “Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier.” The hearing lasted almost four hours, was attended virtually by almost 3,000 members of the public, and had testimony from 12 witnesses, including experts from the American Civil Liberties Union, the U.S. Chamber of Commerce, and the American Association of Retired Persons, as well as witnesses from law firms and universities. Some of the topics discussed at the hearing included: the need to inform applicants when AI tools are being used; how to inform applicants with disabilities of the process for requesting an accommodation; evaluating the scope and quality of the data gathered by AI; whether and how to audit AI tools for bias; and ensuring that the EEOC has a role in evaluating AI systems for bias.

Examples of some of the AI tools that concern disability advocates and the EEOC are: “resume scanners that prioritize applications using certain keywords; employee monitoring software that rates employees on the basis of their keystrokes or other factors; “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements; video interviewing software that evaluates candidates based on their facial expressions and speech patterns; and testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or on a more traditional test.”

The public can submit written comments to the EEOC through February 15, 2023, after which the Commission is expected to issue additional guidance or publications on the topic of artificial intelligence. We will stay abreast of the EEOC’s actions on this front and keep you informed. In the meantime, please be aware that some large metropolitan areas (New York City) and some states (e.g., Illinois) have passed legislation that, among other things, may require an employer to inform applicants of the use of AI and to obtain their consent or allow them to select another application process.

If you have questions about the EEOC’s guidance on and examination of artificial intelligence, or a general labor or employment question, feel free to contact Joel Hlavaty or any member of Frantz Ward’s Labor & Employment Group.