As previously posted in our Hunton Employment & Labor Perspectives blog, on January 10, 2023, the Equal Employment Opportunity Commission (“EEOC”) published a draft of its Strategic Enforcement Plan (“SEP”) in the Federal Register, which outlines the EEOC’s enforcement goals for the next four years. While the EEOC aims to target a number of new areas – such as underserved workers and pregnancy fairness in the workplace – it is notable that it listed as priority number one the elimination of barriers in recruitment and hiring caused or exacerbated by employers’ use of artificial intelligence (“AI”).
On the same day, the Department of Justice’s Civil Rights Division published a Q&A in support of the EEOC’s guidance on AI and the potential for violations of disability discrimination laws in the hiring process. The guidance from both agencies comes on the heels of a technical assistance document issued by the EEOC last June that provided guidance to employers on the use of automated decision tools and ADA protections, which we previously discussed. And not to be left out, the National Labor Relations Board’s General Counsel issued Memorandum 23-02 in October, which urged the Board to adopt a new framework to protect workers engaged in protected concerted activity from “intrusive or abusive electronic monitoring and automated management practices.” Suffice to say, the federal government is zeroing in on employers’ use of AI from all angles, which means that employers should examine carefully how they use such tools throughout the employment cycle.
What the SEP Can Tell Us, and What It Leaves Out
In its draft plan, the EEOC explained why AI and machine learning tools merit greater scrutiny, and provided specific examples of the risks these automated tools pose for discrimination. Highlighted first is the use of such tools during the hiring and recruitment process in a way that may intentionally exclude or adversely impact protected groups. Next, the plan calls out “restrictive application processes or systems” that are difficult for individuals with disabilities to access. Finally, the EEOC highlights screening tools, such as pre-employment tests and background checks aided by AI, that disproportionately impact workers based on their protected status. The EEOC says these practices are of “particular concern” in growth industries such as construction and high-tech.
Unfortunately, the SEP does not offer employers guidance on how they should evaluate or alter their automated tools to comply with non-discrimination laws, leaving companies to “wait-and-see” how the broadly stated goals will be enforced. One suit brought by the EEOC against an online tutoring company may shed some light on the matter. The EEOC alleges in its complaint, brought in the Eastern District of New York, that iTutorGroup, Inc. discriminated against applicants based on their age when its automated screening tool allegedly rejected all applicants over 60 years old. Certainly, such an example is not likely to be typical or perhaps even intentional, but because AI trained with machine learning endeavors to discover and replicate “successful” hiring patterns, such a tool may arrive at a similar outcome, whether explicitly programmed to do so or not.
What Employers Can Do Now
While the SEP issued in January was just a draft, and the EEOC may revise its plan based on public comments, it is likely that a final SEP is adopted in similar form given that Commissioners from both sides of the aisle have expressed interest in the use of AI tools. In the meantime, employers can look to state action – like New York City’s “Automated Employment Decision Tools” law – for potential defensive efforts, such as independent audits of AI tools, and pre-use disclosure to applicants and employees. Please see our Hunton Privacy & Information Security Law blog and Hunton Employment & Labor Perspectives blog for continuing coverage of AI issues, including efforts to implement safeguards against discrimination in AI.
Search
Recent Posts
- Website Use of Third-Party Tracking Software Not Prohibited Under Massachusetts Wiretap Act
- HHS Announces Additional Settlements Following Ransomware Attacks Including First Enforcement Under Risk Analysis Initiative
- Employee Monitoring: Increased Use Draws Increased Scrutiny from Consumer Financial Protection Bureau
Categories
- Behavioral Advertising
- Centre for Information Policy Leadership
- Children’s Privacy
- Cyber Insurance
- Cybersecurity
- Enforcement
- European Union
- Events
- FCRA
- Financial Privacy
- General
- Health Privacy
- Identity Theft
- Information Security
- International
- Marketing
- Multimedia Resources
- Online Privacy
- Security Breach
- U.S. Federal Law
- U.S. State Law
- Workplace Privacy
Tags
- Aaron Simpson
- Accountability
- Adequacy
- Advertisement
- Advertising
- American Privacy Rights Act
- Anna Pateraki
- Anonymization
- Anti-terrorism
- APEC
- Apple Inc.
- Argentina
- Arkansas
- Article 29 Working Party
- Artificial Intelligence
- Australia
- Austria
- Automated Decisionmaking
- Baltimore
- Bankruptcy
- Belgium
- Biden Administration
- Big Data
- Binding Corporate Rules
- Biometric Data
- Blockchain
- Bojana Bellamy
- Brazil
- Brexit
- British Columbia
- Brittany Bacon
- Brussels
- Business Associate Agreement
- BYOD
- California
- CAN-SPAM
- Canada
- Cayman Islands
- CCPA
- CCTV
- Chile
- China
- Chinese Taipei
- Christopher Graham
- CIPA
- Class Action
- Clinical Trial
- Cloud
- Cloud Computing
- CNIL
- Colombia
- Colorado
- Committee on Foreign Investment in the United States
- Commodity Futures Trading Commission
- Compliance
- Computer Fraud and Abuse Act
- Congress
- Connecticut
- Consent
- Consent Order
- Consumer Protection
- Cookies
- COPPA
- Coronavirus/COVID-19
- Council of Europe
- Council of the European Union
- Court of Justice of the European Union
- CPPA
- CPRA
- Credit Monitoring
- Credit Report
- Criminal Law
- Critical Infrastructure
- Croatia
- Cross-Border Data Flow
- Cyber Attack
- Cybersecurity and Infrastructure Security Agency
- Data Brokers
- Data Controller
- Data Localization
- Data Privacy Framework
- Data Processor
- Data Protection Act
- Data Protection Authority
- Data Protection Impact Assessment
- Data Transfer
- David Dumont
- David Vladeck
- Delaware
- Denmark
- Department of Commerce
- Department of Health and Human Services
- Department of Homeland Security
- Department of Justice
- Department of the Treasury
- District of Columbia
- Do Not Call
- Do Not Track
- Dobbs
- Dodd-Frank Act
- DPIA
- E-Privacy
- E-Privacy Directive
- Ecuador
- Ed Tech
- Edith Ramirez
- Electronic Communications Privacy Act
- Electronic Privacy Information Center
- Elizabeth Denham
- Employee Monitoring
- Encryption
- ENISA
- EU Data Protection Directive
- EU Member States
- European Commission
- European Data Protection Board
- European Data Protection Supervisor
- European Parliament
- Facial Recognition Technology
- FACTA
- Fair Credit Reporting Act
- Fair Information Practice Principles
- Federal Aviation Administration
- Federal Bureau of Investigation
- Federal Communications Commission
- Federal Data Protection Act
- Federal Trade Commission
- FERC
- FinTech
- Florida
- Food and Drug Administration
- Foreign Intelligence Surveillance Act
- France
- Franchise
- Fred Cate
- Freedom of Information Act
- Freedom of Speech
- Fundamental Rights
- GDPR
- Geofencing
- Geolocation
- Georgia
- Germany
- Global Privacy Assembly
- Global Privacy Enforcement Network
- Gramm Leach Bliley Act
- Hacker
- Hawaii
- Health Data
- Health Information
- HIPAA
- HIPPA
- HITECH Act
- Hong Kong
- House of Representatives
- Hungary
- Illinois
- India
- Indiana
- Indonesia
- Information Commissioners Office
- Information Sharing
- Insurance Provider
- Internal Revenue Service
- International Association of Privacy Professionals
- International Commissioners Office
- Internet
- Internet of Things
- IP Address
- Ireland
- Israel
- Italy
- Jacob Kohnstamm
- Japan
- Jason Beach
- Jay Rockefeller
- Jenna Rode
- Jennifer Stoddart
- Jersey
- Jessica Rich
- John Delionado
- John Edwards
- Kentucky
- Korea
- Latin America
- Laura Leonard
- Law Enforcement
- Lawrence Strickling
- Legislation
- Liability
- Lisa Sotto
- Litigation
- Location-Based Services
- London
- Madrid Resolution
- Maine
- Malaysia
- Markus Heyder
- Maryland
- Massachusetts
- Meta
- Mexico
- Microsoft
- Minnesota
- Mobile App
- Mobile Device
- Montana
- Morocco
- MySpace
- Natascha Gerlach
- National Institute of Standards and Technology
- National Labor Relations Board
- National Science and Technology Council
- National Security
- National Security Agency
- National Telecommunications and Information Administration
- Nebraska
- NEDPA
- Netherlands
- Nevada
- New Hampshire
- New Jersey
- New Mexico
- New York
- New Zealand
- Nigeria
- Ninth Circuit
- North Carolina
- Norway
- Obama Administration
- OECD
- Office for Civil Rights
- Office of Foreign Assets Control
- Ohio
- Oklahoma
- Opt-In Consent
- Oregon
- Outsourcing
- Pakistan
- Parental Consent
- Payment Card
- PCI DSS
- Penalty
- Pennsylvania
- Personal Data
- Personal Health Information
- Personal Information
- Personally Identifiable Information
- Peru
- Philippines
- Phyllis Marcus
- Poland
- PRISM
- Privacy By Design
- Privacy Policy
- Privacy Rights
- Privacy Rule
- Privacy Shield
- Protected Health Information
- Ransomware
- Record Retention
- Red Flags Rule
- Regulation
- Rhode Island
- Richard Thomas
- Right to Be Forgotten
- Right to Privacy
- Risk-Based Approach
- Rosemary Jay
- Russia
- Safe Harbor
- Sanctions
- Schrems
- Scott Kimpel
- Securities and Exchange Commission
- Security Rule
- Senate
- Serbia
- Service Provider
- Singapore
- Smart Grid
- Smart Metering
- Social Media
- Social Security Number
- South Africa
- South Carolina
- South Dakota
- South Korea
- Spain
- Spyware
- Standard Contractual Clauses
- State Attorneys General
- Steven Haas
- Stick With Security Series
- Stored Communications Act
- Student Data
- Supreme Court
- Surveillance
- Sweden
- Switzerland
- Taiwan
- Targeted Advertising
- Telecommunications
- Telemarketing
- Telephone Consumer Protection Act
- Tennessee
- Terry McAuliffe
- Texas
- Text Message
- Thailand
- Transparency
- Transportation Security Administration
- Trump Administration
- United Arab Emirates
- United Kingdom
- United States
- Unmanned Aircraft Systems
- Uruguay
- Utah
- Vermont
- Video Privacy Protection Act
- Video Surveillance
- Virginia
- Viviane Reding
- Washington
- Whistleblowing
- Wireless Network
- Wiretap
- ZIP Code