Practice Management Alert

The EEOC warns that some AI functions may violate ADA, Title VII protections.

Going through a pile of resumes can feel like a slog, and using artificial intelligence (AI) to do an initial run-through can feel like a lifesaver.

However, the Equal Employment Opportunity Commission (EEOC) is warning employers that some of the algorithms that AI uses may be biased against some people. Employers may be inadvertently violating protections outlined in the Americans with Disabilities Act or the Civil Rights Act of 1964 when using this technology in their hiring processes.

Check in on AI Usage

AI has been used for years to simplify myriad processes. You encounter it when you use a search engine, or rely on autocorrect on your phone or spellcheck on your computer. AI has been in the news a lot recently due to the development of natural language processing, which users encounter via chatbots.

Some human resources (HR) departments may use AI technology to scan resumes, flagging certain words or phrases so that resume can be moved to the next round or be removed from the pool. If your practice administers a pre-employment test, like a coding exam, during the hiring process, it’s crucial to keep an eye out for potential accommodations requests and know your responsibilities to offer, say, alternative formats.

With AI technology progressing so rapidly, some federal agencies and other regulators are more closely scrutinizing its use. In fact, some of the developers of the more advanced AI technology are advocating for extensive regulation, including OpenAI CEO Sam Altman, who appeared before the U.S. Senate to talk about some of the ways AI can benefit people, as well as its various dangers.

Brush Up on ADA, Title VII

The labor-relevant portions of the Americans with Disabilities Act prohibit employers and other entities from discriminating based on disability. Additionally, the Civil Right Act of 1964 Title VII prohibits employment discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), or national origin.

You may think your practice couldn’t be implicated in any AI scrutiny related to ADA or Title VII protections, but if you use the technology, you need to check in on compliance. The EEOC is outlining technical assistance for employers that use AI technology in their hiring process, so they can check — and correct — any disparate impacts on protected populations. Important: The EEOC says that employers can be held liable for AI biases affecting protected populations in the hiring process even if they did not personally design the AI software or its respective algorithms.

Employers should review how they or their vendors utilize AI technology in their hiring practices, says Kathryn Jones, attorney at Hall, Render, Killian, Heath & Lyman, in online analysis.

Understand the Implications

AI can, in some instances, help people with disabilities: In Altman’s Senate appearance, he described an individual with dyslexia who uses a specialized AI tool built on OpenAI technology to help him navigate email and other written communications for his job, including securing a $260,000 grant. But AI can also be used to screen and eliminate job applicants or candidates who may need accommodations — a violation of the ADA.

In a technical assistance document, the EEOC mentions the “four-fifths rule,” which is how they’re checking to see whether the rate of selection is “substantially” different from one group to another. Although the EEOC is careful to designate the four-fifths rule as a “rule of thumb” rather than a hard and fast metric, understanding the calculus is important to check your own compliance.

“The four-fifths rule … is a general rule of thumb for determining whether the selection rate for one group is ‘substantially’ different than the selection rate of another group. The rule states that one rate is substantially different than another if their ratio is less than four-fifths (or 80%),” the EEOC says.

Of course, the four-fifths rule may not constitute statistical significance, but the EEOC still recommends that employers ask relevant vendors whether they used the four-fifths rule when evaluating whether their product might have an adverse impact on a Title VII characteristic.

“Courts have agreed that use of the four-fifths rule is not always appropriate, especially where it is not a reasonable substitute for a test of statistical significance. As a result, the EEOC might not consider compliance with the rule sufficient to show that a particular selection procedure is lawful under Title VII when the procedure is challenged in a charge of discrimination,” the EEOC says.

The EEOC emphasizes that individuals are always empowered to file a charge if they feel like they’ve experienced discrimination related to employment.

“A discrimination charge is an applicant’s or employee’s statement alleging that an employer engaged in employment discrimination and asking the EEOC to help find a remedy under the EEO laws,” the EEOC says. The EEOC may then begin an investigation and can also assist in confidential mediation to pursue resolution.