Along with states and cities beginning to legislate the use of artificial intelligence (AI) in employment decision-making, the Equal Employment Opportunity Commission has reaffirmed its position of ensuring legally compliant use of AI in this area. In fact, the EEOC expressly identified its intention to prioritize regulating the use of AI systems in employment decision-making when it published its draft Strategic Enforcement Plan (“SEP”) for 2023-2027.

In the Draft SEP, which was published on January 10, 2023, the EEOC outlined the agency’s strategic priorities, including monitoring employment discrimination stemming from employers’ use of AI. More specifically, “eliminating barriers in recruitment and hiring” is a subject matter priority identified in the Draft SEP, which states that the “EEOC will focus on recruitment and hiring practices and policies that discriminate against racial, ethnic, and religious groups, older workers, women, pregnant workers and those with pregnancy-related medical conditions, LGBTQI+ individuals, and people with disabilities.” The Draft SEP specifically identifies the following “practices” as those that the EEOC will monitor:

• The use of automated systems, including artificial intelligence or machine learning, to target job advertisements, recruit applicants, or make or assist in hiring decisions where such systems intentionally exclude or adversely impact protected groups.
• Screening tools or requirements that disproportionately impact workers based on their protected status, including those facilitated by artificial intelligence or other automated systems, pre-employment tests, and background checks.

The Draft SEP also addressed AI technology when discussing technology-related employment discrimination.

Although the final version of the SEP is forthcoming, as the public meeting on the Draft SEP took place on January 31, 2023, and the public comment deadline of February 9, 2023 has passed, the EEOC’s focus is clear: enforce anti-discrimination laws, whether the alleged violations are committed by a human or artificial intelligence.

The EEOC’s increased focus on the use of AI in employment decision-making comes as no surprise, as the agency has consistently addressed this topic after launching its Initiative on Artificial Intelligence and Algorithmic Fairness in 2021. Not only has the EEOC provided guidance on ADA compliance when using AI for employment decision-making, but in May 2022, the EEOC filed a lawsuit against three integrated companies providing English-language tutoring services, alleging that the companies violated federal law by programming their recruitment software to automatically reject older applicants because of their age. E.E.O.C. v. iTutorGroup, Inc. et al., 1:22-cv-02565-PKC-PK is currently pending in the U.S. District Court for the Eastern District of New York.

As the EEOC continues to focus on AI in employment decision-making, including by pursuing adjudication from courts on application of anti-discrimination laws to the use of this technology, employers should carefully monitor their use of AI to ensure it promotes neutral hiring and decision-making practices.