On April 29, 2024, in response to an Executive Order issued by President Biden last October, the Office of Federal Contract Compliance Programs (“OFCCP”) of the U.S. Department of Labor issued guidance to federal contractors on the use of artificial intelligence (“AI”) in order to address, “AI in the Equal Employment Opportunity (EEO) context.”. This Guidance follows previously reported guidance and actions issued and taken by the U.S. Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Justice (“DOJ”) on which Frantz Ward has previously reported:

• In May of 2022, we reported that the EEOC and DOJ issued guidance to employers, employees and applicants on the use of artificial intelligence tools.
• In February 2023, we reported that the EEOC had held a public hearing in January 2023 to examine the use of automated systems, including artificial intelligence, in employment decisions.
• In August 2023, we reported that as part of its aggressive stance against companies that utilize AI software,  the EEOC had reached a tentative settlement of its first discrimination suit based on the use of AI software. EEOC v. iTutorGroup, Inc., E.D.N.Y., No. 22-cv-02565 (2022).

This new OFCCP Guidance, “answers questions and shares promising practices … to clarify federal contractors’ legal obligations, promote EEO, and mitigate the potentially harmful impacts of AI in employment decisions.” While the OFCCP Guidance is directed at federal contractors, it also serves as a roadmap for how the OFCCP is going to address the use of AI in the private sector. For example, in discussing common questions about the use of AI in employment decisions, the Guidance makes it clear that employers need to adhere to OFCCP requirements with respect to maintaining records and confidentiality, as regardless of whether an employer develops its own AI system or uses that of a third-party, the employer is ultimately responsible for meeting their nondiscrimination and affirmative action obligations. The Guidance also emphasizes the need of employers to make reasonable accommodations of applicants and employees with known physical or mental disabilities.

The Guidance additionally discusses at length several “Promising Practices” for the development and use of AI in employment decisions. The OFCCP states that, “while not expressly required [these Promising Practices are] actions contractors may consider to help avoid potential harm to workers…” It further states that the Promising Practices are “not an exhaustive list, but rather an initial framework.” The Promising Practices include:

• Providing advance notice and appropriate disclosure to applicants of the use of AI and the data to be captured and used, and informing applicants how to request and obtain reasonable accommodation in the hiring process.
• Standardizing for all applicants any AI system that is used, routinely monitoring such system to ensure there is no disparate impact, and not relying solely on AI to make employment decisions.
• Vetting and managing any AI vendors that an employer may use.