ACLU Applauds EEOC’s Guidance for Assessing Automated Systems Used in Employment Decisions

WASHINGTON — Today, the Equal Employment Opportunity Commission (EEOC) released a technical assistance document, “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964,” focused on preventing AI discrimination against job seekers and workers.

The new technical assistance document states that the use of algorithmic decision-making tools in employment decisions is subject to Title VII, and makes clear that employers should take affirmative steps to ensure they are not using tools that have an adverse impact based on protected characteristics.

This latest guidance builds on last summer’s guidance from the EEOC and DOJ on the application of the Americans with Disabilities Act to algorithmic decision-making tools as well as those agencies recently issuing a joint statement with the Consumer Financial Protection Bureau and the Federal Trade Commission about enforcement efforts to protect individuals’ rights when such tools are used.

The following comment is from Olga Akselrod, senior staff attorney in the Racial Justice Program at the American Civil Liberties Union:

“This is a good step forward to further clarify Title VII’s protections for workers against discrimination arising from the use of automated systems in a wide range of circumstances, including hiring, monitoring performance, and determining pay or promotions. Together with the prior Americans with Disabilities Act guidance and the multi-agency statement on enforcement, the guidance makes clear that employers are obligated to ensure that automated decision-making tools do not discriminate on the basis of race, gender, disability, and other protected characteristics and that they must carefully vet any such tools — both before adoption and after, if they choose to use them. Employers should not use these tools unless they have been robustly tested and measure characteristics that are relevant to the job and are not discriminatory, provide workers and applicants meaningful notice about the use of these tools and appeal processes, and regularly evaluate how the tools are functioning.”