Artificial Intelligence and the Equal Employment Opportunity Commission (EEOC)

When I first heard the term “Artificial Intelligence” or “AI” a few years ago, it got filed away in the recesses of my mind reserved for things I will learn about someday, but not today. It’s the same place that not so long ago, I stored words like “social media” and “android” and “streaming.” And lo and behold, just like all those words, all of a sudden “artificial intelligence” is impacting my world and the world of my clients. When I first tried to translate what “artificial intelligence” means, I had visions of things that could not possibly impact me or my clients. It did not take long for me to be wrong… again. [I’m still hanging on to my cassette tapes just in case…]

Alarm bells first rang when I started attending continuing legal education conferences with breakouts about AI and reading articles in law journals with themes about potential malpractice claims and sanctions by judges against attorneys for misplaced reliance on AI. That got my attention. Attorneys were and are relying more and more on AI to help in doing legal research, and research about parties to lawsuits, and jury selection, and many other applications. As it turns out, the AI they were relying on was not always reliable.

As I dissect AI, it occurs to me that every time I ask Siri or Google questions like how old Mick Jagger is and where is the best place to find pizza in Chicago, I am relying on AI. And probably that is no harm-no foul other than the risk of a really bad pizza. I still rely on Wikipedia to win all bets with my husband.

Turns out, AI has found its way into all aspects of our lives, including its use in human resources. And it has gotten the attention of the EEOC. When it gets the attention of the EEOC, it also gets my attention. On August 9, 2023, a tutoring company agreed to pay $365,000 to resolve charges that its AI-powered hiring selection tool automatically rejected women applicants over 55 and men over 60.  An applicant who had not been hired at iTutorGroup became suspicious when she resubmitted an identical resume’ a second time but with a younger birthdate and got an interview in the second application. She filed a complaint with the EEOC, who filed a lawsuit on behalf of 200 applicants. Not only did they have to pay out $365,000 to resolve the case, but they had to reconsider the applicants who had been rejected. This is the first settlement of its kind.

According to SHRM, between 79 and 85 percent of all employers now use some form of AI in recruiting and hiring. Many of those employers are relying on outside recruiting firms. It is a good bet that those of you who are using AI resources like credit check companies, background check companies, staffing agencies and other places do not have the foggiest idea about the integrity and reliability of the electronic tools those companies are using and the information they are giving you. I have decided it is no different than that old adage we all know to be true – G-I-G-O. The information that Google or Wikipedia and all those other places that we dig around in is no better than the information that was input. Somewhere it all starts with humans. Science has shown that there is profound implicit bias in how information is created. Hence, garbage in/garbage out.

What are we supposed to do about that? I for one would have no idea in the world how to confirm the information I am seeking. If I Google the name of a plaintiff to see what turns up, how am I to know whether it’s reliable? Other sources tell me I am committing malpractice if I don’t Google parties to a lawsuit. Should I stop using all the information I find through artificial intelligence? I would never be able to rely on another recipe I found on the internet again. And I would never be able to use Google Maps to find that pizza place that is getting five stars on the internet.

SHRM has provided some pointers to help you do your due diligence. A summary of some of them is provided here. The EEOC has also issued an AI initiative and guidance which can be found on their website. It’s worth taking a look at unless you decide to never turn on a computer again to help you do your ever-increasing and more complicated job.

Some of SHRM’s guidance suggests the following:

  • Rigorously test any AI tools before implementing them. They recommend using diverse data sets to ensure the software won’t inadvertently discriminate against certain demographics. Translation: Don’t blindly assume the data is accurate. In retrospect, the iTutor misplaced reliance was pretty simple to ferret out sitting as a Monday morning quarterback, but not so simple if you are a large company hiring hundreds and thousands of people.
  • Regularly review your AI-powered HR tools to make sure things stay compliant and no inherent biases exist. As the EEOC has expressly stated, you can’t pass the buck and blame your software vendor.
  • New York City just passed a law to require employers using AI in the employment context to conduct AI bias audits. Others will undoubtedly follow.
  • All roads lead to HR and training. SHRM urges that your HR department should get a crash course on the use of AI in personnel matters so they can assure fairness without inadvertently perpetuating biases.
  • Foster an environment where applicants and employees are aware of the use of AI in the HR environment and create a comfort level for them to voice concerns about perceived biases. This is not unlike other instances where we gather information from an outside source. For instance, if you receive a no-match letter from the IRS or other agency, you know that you must give someone an opportunity to respond and explain. If a background check comes back with information that causes you to not hire someone, you know you must share that information with the rejected applicant and allow them an opportunity to respond.
  • Do not rely solely on AI in making HR-related decisions. Keep humans involved in the process.  As SHRM says, “Make sure you maintain a healthy dose of human judgment in your workplace decision-making.”
  • Seek out expertise. Partner with legal counsel who understands all the issues that need to be considered in an HR world.
  • Stay up to speed. In this whack-a-mole world we live in, it is critical to keep yourself in the know. At least a basic awareness of what is trending in our world will go a long way in what keeps us awake at night:  the dreaded fear of not knowing what you don’t know.

If you have any questions, you are invited to contact any of the employment lawyers at Lemons, Grundy & Eisenberg.