©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | 17 EEOC leaders have participated in executive branch AI initiatives, including the October 2022 release of the Biden administration’s Blueprint for an AI Bill of Rights,61 and a joint press release with three other federal agencies62 in April 2023 touting a “commitment to enforce their respective laws and regulations to promote responsible innovation in automated systems.” Additionally, in May 2023, all EEOC personnel were requested by EEOC Chair Charlotte Burrows to attend an AI training about how front-line staff could “identify AI-related issues in [their] enforcement work”.63 On October 30, 2023, President Biden signed a broad-ranging Executive Order, setting in motion action from multiple Departments and independent agencies, with the aim towards both harnessing the benefits of AI and maintaining American leadership in innovation, while addressing risks associated with the use of AI.64 While President Biden’s Executive Order did not directly single out the EEOC for any AI-related deliverables, its mandate is clear to agencies charged with enforcing civil rights laws, such as the EEOC. These agencies are directed to make “comprehensive use of their respective authorities” to address potential civil-rights harms arising from the use of AI, including “issues related to AI and algorithmic discrimination”. The Executive Order further directs the Attorney General to “coordinate with and support agencies in their implementation and enforcement of existing Federal laws to address civil rights and civil liberties violations and discrimination related to AI” and directs agencies to coordinate “on best practices for investigating and prosecuting civil rights violations related to AI” and to provide further inter-agency training and technical assistance. On November 1, 2023, the White House announced the formation of the “US AI Safety Institute” within the National Institute of Standards and Technology (NIST). According to the White House, the new AI Safety Institute will develop “technical guidance that will be used by regulators considering rulemaking and enforcement on issues such as … identifying and mitigating against harmful algorithmic discrimination”.65 NIST has already ramped up its already-intense efforts to gather expertise on AI issues, and, at a minimum, the EEOC will be keyed into these efforts as it accelerates its own enforcement and other efforts in this area. Against this backdrop, employers should be mindful that any charge of discrimination filed with the EEOC that mentions the use of artificial intelligence—or any other technology in hiring—will not only qualify for priority handling, but is also likely to receive additional scrutiny from EEOC management. Likewise, the SEP is used to inform the EEOC’s selection of litigation, so it would not be surprising to see EEOC litigators mining for AI cases to develop and bring. 2 Other Technology in Hiring and the Path Ahead on AI Importantly, the EEOC signaled that it is focusing on all uses of technology in recruitment and hiring, not just artificial intelligence. In August 2023, the EEOC entered into a settlement agreement with iTutorGroup, which many media reports and commenters characterized as the EEOC’s “first ever” case involving artificial intelligence discrimination in hiring. However, according to the EEOC’s complaint, the underlying hiring technology simply asked job applicants for their date of birth and was configured to automatically reject female applicants age 55 or older and male applicants age 60 or older. To be clear, automatically rejecting older job applicants, when their birthdates are already known, does not require any sort of artificial intelligence or machine learning.66 61 https://www.whitehouse.gov/ostp/ai-bill-of-rights/ 62 https://www.eeoc.gov/newsroom/eeoc-chair-burrows-joins-doj-cfpb-and-ftc-officials-release-joint-statement-artificial 63 https://news.bloomberglaw.com/daily-labor-report/eeoc-to-train-staff-on-ai-based-bias-as-enforcement-efforts-grow 64 https://www.seyfarth.com/news-insights/president-biden-signs-executive-order-setting-forth-broad-directives-for-artificial-intelligenceregulation-and-enforcement.html 65 https://www.workplaceclassaction.com/2023/11/how-the-federal-governments-ai-risk-management-practices-will-set-the-standard-a-closer-lookat-government-action-following-president-bidens-executive-order-on-ai/ 66 https://www.seyfarth.com/news-insights/eeocs-settlement-challenging-simple-algorithm-provides-warning-for-employers-using-artificialintelligence.html
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