Last month, the Equal Employment Opportunity Commission (EEOC) released its Draft Strategic Enforcement Plan for 2023- 2027 (SEP), and invited the public to submit comments by February 9, 2023.

The EEOC continues to emphasize the elimination of barriers in recruitment and hiring, and seeks to prioritize its consideration of policies and practices that incorporate artificial intelligence (AI).

While the Draft Strategic Enforcement Plan also lists more traditional tools as impacting hiring and recruitment (e.g., job advertisements, limiting access to training, etc.), by listing AI and automation tools first, the EEOC highlights its concern over AI and its increasing use (and potential abuse) by employers. During recent public hearings, the EEOC heard testimony about the need for oversight and auditing of AI tools, which, according to testimony and studies, can result in greater discrimination than human-based tools.

The Draft SEP is not the first time the EEOC has considered AI in employment decision making. In May 2022, the EEOC issued guidance on the impact of AI on applicants and employees with disabilities – The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees. More recently, the EEOC has emphasized that AI can also facilitate discrimination on the basis of age, race and sex.

Last September, we blogged about the recent New York City law regulating the use of AI in employment decisions, which took effect on January 1, 2023, but with its enforcement subsequently deferred to April 15, 2023 due to the high number of public comments submitted to The Department of Consumer and Worker Protection (DCWP), the law’s enforcement authority.

Although AI permits the screening of thousands of employment applications in a fraction of the time it would take for a human, certain “filters” that reject individuals from consideration based on seemingly neutral (or not so neutral) factors could lead to intentional discrimination.

For example, it would appear to be easy to use AI to screen out applicants, who have been out of school for a long time or over a certain age. Consequently, without more oversight these new tools can continue to perpetuate old problems.

No employer should consider the use of AI without first learning how these tools work, and how they impact different classes of individuals. In addition, employers should keep in mind their obligation to consider requests for reasonable accommodations on the use of AI.

We will keep you informed of further developments in this area. If you have any questions, please contact Salvatore Gangemi, or any other attorney in Murtha’s Labor and Employment Group with whom you have previously worked.