On 24 September 2024, the Department of Labor (DOL) announced the publication of the “AI & Inclusive Hiring Framework” (Framework) to “support the inclusive use of artificial intelligence in employers’ hiring technology and increase benefits to disabled job seekers.”1 The Framework is one of the latest publications designed to support the Biden-Harris administration’s “Blueprint for an AI Bill of Rights”, which focuses on how artificial intelligence (AI) may exacerbate existing biases in employment, housing, education, and other key legal areas.2 The DOL also issued comprehensive guidance on best practices on using AI tools in the workplace on 16 October 2024, which we will address in a forthcoming alert.
The Framework was published by the Partnership on Employment & Accessible Technology (PEAT), a private entity funded by the DOL’s Office of Disability Employment Policy (ODEP), and was primarily authored by ODEP and PEAT, with the National Institute of Standards and Technology’s and other external partners’ assistance.3 Although the DOL and ODEP were involved in the Framework’s drafting and promotion, PEAT’s website makes clear that the Framework “does not necessarily reflect the views or policies of ODEP or DOL.”4 Despite this disclaimer, the Framework provides helpful guidance for employers seeking to responsibly, equitably, and legally use AI in hiring.
Framework Focus Areas
The Framework contains 10 focus areas and associated goals, with guidance and resources provided by PEAT as to each focus area and goal.
Identify Legal Requirements
Including determining the applicable state and federal laws regarding nondiscrimination, accessibility, and privacy that would affect AI hiring technology
Establish Staff Roles
Including selecting and training workers who will deploy AI hiring technology
Inventory Technology
Including collecting information from vendors about the use of AI hiring technology
Work with Vendors
Including creating and implementing policies with the vendors to ensure inclusive deployment of the AI hiring technology
Assess Impacts
Including evaluating the positive and negative effects of the AI hiring technology alongside internal and external stakeholders
Provide Accommodations
Including developing a process for job seekers to request accommodations;
Use Explainable AI
Including writing plain language statements for job seekers about the AI hiring technology and how they can request accommodations
Ensure Human Oversight
Including drafting guidelines for using the AI hiring technology and measure the human performance in using the AI hiring technology tools
Manage Incidents
Including creating policies and systems for recording, responding to, reporting, and appealing identified incidents
Monitor Regularly
Including reviewing the performance of the AI hiring technology tools
To avoid overwhelming employers, employees, and job seekers, the Framework makes clear that the goals are meant to be implemented in stages and are not designed to be tackled immediately all at once.
The Framework also shares some policy goals with other federal guidance on AI in the labor and employment space. For example:
- Focus area 5 assesses the impact AI may have on current and prospective employees among others and mirrors the overarching goal of the US Equal Employment Opportunity Commission’s (EEOC) 18 May 2023 nonbinding guidance on AI-influenced “selection procedures” (e.g., hiring, firing, promoting, etc.) and how it may trigger Title VII disparate impact liability;5
- Focus area 10 notes the importance of regularly monitoring AI tools to ensure compliance with nondiscrimination and accessibility legal requirements, which the Office of Federal Contract Compliance Programs (OFCCP) also highlighted in its 29 April 2024 nonbinding guidance on AI use by federal contractors.6
- Focus areas 4, 6, 7, and 8 also contain considerations addressed in the OFCCP’s guidance, including that: (i) legal liability relating to the use of AI tools ultimately rests with the employer and cannot be assigned to the AI vendor; (ii) employers should have a process for applicants to request accommodations relating to the use of AI; and (iii) employers should create human oversight policies and procedures.7
Recommendations
Employers considering using or already using AI when making key employment decisions (e.g., hiring, firing, promotions) should consult the Framework and ensure that their AI programs address the 10 focus areas. Further, if employers also have frequent contact with other federal agencies, such as the OFCCP because of federal contracts they possess, then they should also consult that agency’s respective AI guidance. Additionally, while federal agencies have acted in Congress’s absence on AI, states have also proposed — and in some cases enacted — legislation regulating AI. Employers and their counsel should track state AI-related developments and ensure compliance to avoid legal and reputational risks.
1 https://www.dol.gov/newsroom/releases/odep/odep20240924.
2 https://www.whitehouse.gov/ostp/ai-bill-of-rights/.
3 https://www.peatworks.org/ai-inclusive-hiring-framework/.
4 https://www.peatworks.org/employer-topics/artificial-intelligence-ai/.
5 K&L Gates’ alert on the EEOC’s 18 May 2023 nonbinding guidance is available here: https://www.klgates.com/EEOC-Issues-Nonbinding-Guidance-on-Permissible-Employer-Use-of-Artificial-Intelligence-to-Avoid-Adverse-Impact-Liability-Under-Title-VII-5-31-2023.
6 K&L Gates’ alert on OCFFP’s 29 April 2024 nonbinding guidance is available here: https://www.klgates.com/OFCCP-Guidance-Expands-Federal-Scrutiny-of-Artificial-Intelligence-Use-by-Employers-7-16-2024.
7 K&L Gates’ alert on OCFFP’s 29 April 2024 nonbinding guidance is available here: https://www.klgates.com/OFCCP-Guidance-Expands-Federal-Scrutiny-of-Artificial-Intelligence-Use-by-Employers-7-16-2024.
