18 | EEOC-INITIATED LITIGATION: 2024 EDITION ©2024 Seyfarth Shaw LLP That said, it is entirely fair to say that the EEOC’s iTutorGroup complaint and settlement, as well as the way the commission has characterized the lawsuit and settlement, squarely falls within the broader scope of the EEOC’s greater scrutiny of all sorts of technology in hiring, even technology that does not involve artificial intelligence. The EEOC’s commitment to enforcement in the area of AI and other technology in hiring serves as a strong reminder that employers should be prepared to defend their use of technology in hiring, whether or not it might fall into any particular legal definition of “artificial intelligence.” In response to EEOC charges alleging that the use of AI or other technology is discriminatory, employers should be prepared to explain to EEOC investigators what AI or other technology they have been using in hiring or sourcing processes, and produce evidence that their processes are free of unlawful disparate impact against protected groups. Also, if employers have not already had conversations with their AI vendors or in-house developers about the likelihood of scrutiny of these processes in enforcement actions or litigation, in certain circumstance it could be an opportune time to take a deeper look at how technology is being used in their own organization. In public comments in October 2023,67 EEOC Chair Charlotte Burrows continued to express her apprehensions regarding the potential discriminatory impact of AI, especially highlighting concerns about algorithms trained on insufficiently diverse data. Employers facing scrutiny of their hiring or sourcing technology by the EEOC may also wish to anticipate how they would be able to respond to any concerns about the diversity of their algorithm’s training data, and the measures that they or their vendors have taken to rectify any applicable concerns. The EEOC’s sharper enforcement focus on AI and hiring technology is set against a backdrop of broader regulatory activity outside of the Executive Branch. In 2023, Congress began hosting highprofile hearings on AI regulation, although clear legislative proposals from leadership have yet to emerge. Moreover, state and local regulations are also coming into play, potentially paving the way for EEOC actions or private lawsuits. For example, New York City’s Local Law 144,68 whose enforcement began in July 2023, mandates employers to publish bias audit summaries for certain automated hiring tools. Disclosures made pursuant to New York City’s law, or similar state and local proposed efforts, could turn heads at the EEOC or attract lawyers searching for litigation opportunities. 3. Job Advertisements The EEOC’s SEP accentuates the risks associated with unlawfully targeted job advertisements, or advertisements that otherwise deter people from specific protected groups from applying. The EEOC’s emphasis here includes job advertisements posted in traditional media that might contain discriminatory language, as well as issues involving algorithmic targeting of job advertisements. 4 Job Segregation or Steering Based on Protected Characteristics Job segregation and steering issues have been included in the SEP since 2017. Charges and litigation in this category could involve practices that do not necessarily focus on technology, such as steering women away from certain positions, channeling workers onto certain shifts, or assigning workers to certain positions based on a protected class. However, as with other hiring categories in the SEP, there is also a technology angle, with the EEOC expressing potential heightened interest in charges involving technology that applies—with or without AI—allegedly discriminatory steering or segregation, such as by suggesting jobs for which an applicant or employee is well-matched. 67 https://www.brookings.edu/events/ai-in-employment-and-hiring-a-fireside-chat-with-eeoc-chair-charlotte-a-burrows/ 68 https://www.seyfarth.com/news-insights/artificial-intelligence-in-employment-what-new-york-citys-local-law-144-means-for-automatedemployment-decision-tools.html
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