On March 23, 2023, the EEOC announced a conciliation agreement with DHI Group, Inc. (“DHI”)—a company that operates a job-search website (Dice.com) for technology professionals. The conciliation arose out of multiple national discrimination charges that had been filed against DHI Group, Inc. because its customers posted positions on the website that excluded Americans—thereby deterring individuals from applying based on their national origin.
Pursuant to the conciliation agreement, DHI agreed to:
- Rewrite its programming to scrape for potentially discriminatory keywords such as “OPT”[1], “H1B”[2] or “Visa” that appear near the words “only” or “must” in its customers’ new job postings.
- Revise its guidance to customers on its “Job Postings not permitted on Dice” website pop-up to include instructions to avoid language such as “H-1Bs Only” or “H-1Bs” and OPT Preferred.”
This conciliation agreement follows the EEOC’s May 12, 2022 guidance concerning potential discrimination against disabled employees via the use of AI,[3] its January 10, 2023 draft Strategic Enforcement Plan which emphasizes its focus on eliminating barriers to recruitment and hiring resulting from AI,[4] and its January 31, 2023 hearing concerning employment discrimination and the use of AI.[5]
Given the EEOC’s increased focus in this area, employers must be cognizant of the potential for costly class-based litigation concerning the use of AI technology.
Employer Tips to Reduce Risk Related to the Use of Artificial Intelligence in Hiring
- If using an outside resource to assist with hiring, ask them whether the software they employ and algorithms that are used have been tested for potential bias and what steps have been taken to eliminate the same.
- Thoroughly review potential job postings to evaluate whether the language used may have the potential to screen out applicants based on protected characteristics. In this case, what may have seemed to be innocuous at the time (language that ensured the applicant was legally able to perform work in the United States) ended up screening out an entire protected class.
Stay tuned as we anticipate this to be an ongoing hot topic and plan to update on future litigation and tips to avoid the same.
[1]OPT is a type of F-1 off campus work authorization for international degree-seeking students who wish to gain experience in jobs directly related to their major area of study.
[2] H-1Bs are visas that allow employers to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.
[3] The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees | U.S. Equal Employment Opportunity Commission (eeoc.gov).
[4] Federal Register :: Draft Strategic Enforcement Plan.
[5] Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier – YouTube.
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