Adam S. Forman, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Detroit and Chicago offices, was quoted in the Bloomberg Law Daily Labor Report, in “Busting Companies for AI Bias in Hiring is Tough Task for EEOC,” by Riddhi Setty and Annelise Gilbert.
Following is an excerpt:
The EEOC’s high-profile effort to target biased hiring decisions made by companies’ artificial intelligence software is poised to face big challenges, as the opaque nature of these tools often prevents applicants from knowing they’re the victims of discrimination at all.
The US Equal Employment Opportunity Commission settled its first-ever AI-based hiring discrimination case on Thursday. A group of job seekers received $365,000 in the deal, resolving the commission’s suit against iTutorGroup Inc., a company that allegedly programmed its recruitment software to automatically reject older applicants.
Employers can use AI tools to screen applicants and their resumes for desired qualities and experiences, which in turn can lead to intentional or unintentional discrimination by rejecting them based on race, sex, age, or other characteristics protected by federal law. Many AI tools, which are becoming increasingly popular in HR departments, are trained on historical data that contains built-in biases.
The EEOC has repeatedly emphasized its focus on addressing AI discrimination, launching a major initiative and issuing guidance. Chair Charlotte Burrows earlier this month called the technology the “new civil rights frontier.”
The commission also signaled its interest in tackling AI-based hiring bias through its draft strategic enforcement plan in January.
But employment attorneys say the agency is still fighting an uphill battle, as it typically relies on job seekers and employees to flag potential bias by filing charges with the commission. The secrecy inherent in AI tools makes that difficult for most job applicants. …
EEOC’s Work
Despite the EEOC’s emphasis on addressing AI bias, there hasn’t been any known litigation on the issue by the commission yet, aside from the iTutorGroup settlement.
While AI in HR technology is relatively new, and the EEOC may only be in the early stages of receiving them, the challenges ahead are apparent. …
In the case of iTutorGroup, for instance, an applicant only realized bias might be at play when they submitted a second application with an earlier birth date listed, according to court documents. They were automatically offered an interview, instead of being rejected on their second try, the filings said.
Even if a lawsuit alleging bias in AI reaches the discovery stage, the EEOC and plaintiffs may still have a hard time gaining access to audits the software has undergone that may support bias. If an employer does an audit at the direction of counsel, it can be considered privileged, according to management-side attorney Adam Forman of Epstein Becker Green P.C.
