Last month, the Equal Employment Opportunity Commission (EEOC) held a hearing on the increasing use of artificial intelligence for the purpose of making hiring and other employment decisions. In the employment context, AI might use large amounts of data regarding hiring criteria, performance, and other factors to recommend actions with regard to individual situations. The EEOC raised concerns that software and other emerging technologies may unintentionally discriminate against persons in protected categories under federal law.

The EEOC announced an initiative to address potential discrimination in the algorithms used to guide AI programs. The agency also issued a technical assistance guide that addresses special issues relating to discrimination by automated systems against persons with disabilities. These programs could screen out persons with disabilities, or fail to provide reasonable accommodations to such individuals. These could include situations where the AI rejects an applicant due to speech patterns or gaps in employment that could be explained by their medical condition.

Employers considering the use of AI or other automated systems for hiring or other human resource functions should carefully vet those programs to make sure that they have been designed and tested for such use, and that they do not create a disparate impact against persons in protected classifications.