Earlier this year, the US Equal Employment Opportunity Commission (EEOC) announced the launch of an Artificial Intelligence and Algorithmic Fairness Initiative, pursuant to which the agency would seek to ensure that software, including AI, used in employment decisions such as hiring, firing, and promoting complies with federal anti-discrimination laws. In line with that initiative, on May 18, 2023, the EEOC released a new technical assistance document titled “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964” (Guidance).

The Guidance builds upon previous EEOC technical assistance guidance on the Americans with Disabilities Act and a joint agency pledge. It primarily explains the meaning of key terms in the artificial intelligence space, offers general background on Title VII, and provides helpful answers to potential questions employers, employees, applicants, and technological vendors may have regarding the use of AI tools in employment decision-making.

With the Guidance, the EEOC is clearly signaling that employers are responsible for ensuring their AI tools do not discriminate and cause adverse or disparate impacts based on protected characteristics. Employers should therefore understand how their algorithms function to ensure they are not violating existing civil rights laws or regulations. This is particularly important because there is little precedent for enforcement actions in this space, making it difficult to know what practices are acceptable or out-of-bounds.

In light of this, employers should carefully review the Guidance, especially the FAQ section, in the face of novel questions or uncertainties. The EEOC has made it clear that the Guidance seeks to guide more than just employers – applicants, employees, and technological vendors that use these technologies should be watching to ensure they are used in a fair and consistent manner.

If you have questions about this guidance, need assistance developing policies and procedures, or evaluating the use of current or potential artificial intelligence technology, please contact a member of the Labor & Employment team or the Reed Smith Lawyer with whom you normally work.