2 minute read | May.23.2023
A growing number of companies use artificial intelligence (AI) algorithms to identify and evaluate candidates, a development that promises to revolutionize recruitment and hiring. Proponents say AI-driven systems can eliminate bias, enhance objectivity, optimize efficiency and lead to fairer and more accurate selection outcomes. Those systems also can potentially affect diversity, equity and inclusion at work, though, and federal regulators are warning employers to stay vigilant.
The EEOC recently reminded companies that Title VII of the Civil Rights Act “prohibits employers from using neutral tests or selection procedures that have the effect of disproportionately excluding persons based on race, color, religion, sex, or national origin.” The ban applies to tests or selection procedures that are not “job related for the position in question and consistent with business necessity.”
The EEOC says discrimination can result when companies use “algorithmic decision-making tools” or software systems such as:
Even employers using AI tools designed or administered a third party may be liable if disparate impacts result from their use, the EEOC says.
To reduce the risk of running afoul of Title VII when using AI to select candidates, we recommend companies work with counsel to:
Contact the Orrick employment team to learn more.