Chatbots in Hiring? EEOC Says Artificial Intelligence Used in Hiring and Firing Is Subject to Employment Discrimination Law

The U.S. Equal Employment Opportunity Commission (EEOC) recently released guidance explaining how anti-discrimination law applies to the use of artificial intelligence in hiring, firing, and promotion decisions.

As Artificial Intelligence (AI) and algorithmic tools become more prevalent, it becomes increasingly essential for workers to understand how anti-discrimination laws might protect them.

Title VII is a federal civil rights law that prohibits workplace discrimination based on sex, race, color, national origin, and religion. Under Title VII, even seemingly neutral workplace procedures can be discriminatory if they disproportionately impact protected groups of people, and there’s no compelling job-related or business-related reason for using such procedures. This kind of discrimination is commonly referred to as “disparate impact.”

The EEOC guidance explains how Title VII, and specifically disparate impact discrimination, might apply to the use of AI in hiring, firing, and promotion decisions. Examples of artificial intelligence and algorithmic software tools include video interviewing software, software that monitors and rates employees’ computer activity, or software that scans resumes and prioritizes them based on keywords. If these technologies are disproportionately selecting or not selecting groups of workers, there might be disparate impact discrimination.

The key takeaways are as follows:

• Title VII’s prohibition on disparate impact applies to the use of AI in hiring, firing, and promotion decisions. If an employer uses software that produces disproportionately negative results for a group of applicants or employees, then they may be in violation of Title VII.

• An employer who uses AI software for employment decisions could be liable for the discriminatory impact of those tools, even if someone else created the software.

• Like with other kinds of disparate impact, if one group is being selected (for hiring, promotion, or firing) at substantially lower or higher rates, there might be disparate impact discrimination.

If you believe your rights under Title VII have been violated, please contact a Levy Ratner attorney here.