The Equal Employment Opportunity Commission (“EEOC”) kicked off 2023 with an announcement that it intends to increase enforcement efforts to address discrimination arising from the use of employment-related decision-making tools supported by artificial intelligence. On January 10, 2023, the EEOC published its Draft Strategic Enforcement Plan (“SEP”) in the Federal Register for fiscal years 2023-2027. For the past decade, EEOC has issued SEPs to establish “technical priorities and strategies for integrating EEOC’s activities in the private, public, and federal sectors.” For the first time and high on the draft enforcement plan’s list for “removing barriers to recruitment and hiring practices” is a focus on “the use of automated systems, including artificial intelligence or machine learning, to recruit targeted ads and attract applicants.” recruit or make or assist in hiring decisions when such systems intentionally exclude or adversely affect protected groups.” Through this prioritization, the EEOC hopes to eliminate and prevent discrimination resulting from the application of screening tools used in hiring practices and employment decisions.
EEOC’s current SEP indicates that the agency will take a more targeted enforcement approach through “proactive efforts to address priority SEP issues, including the use of commissioner charges and targeted investigations” and better integrate “its information and data policies with the SEP Priorities of the Authority.” In the past, the EEOC has been sparing in its use of Commissioner Charges, which have represented less than 1% of annual fee volume since 2015. However, commissioner charges could prove crucial in identifying potential discrimination based on the use of AI-based recruiting, hiring and HR tools. While some state and local legislatures have increased their activities to regulate employment-related AI tools, there is no federal requirement that employers disclose their use of AI technology in employment processes, meaning many affected parties may never realize they may are adversely affected by this technology. As such, it is likely that the EEOC will seek to collect more employer data while at the same time relying more heavily on its Commissioner Charge agency to identify and investigate possible allegations of discrimination in this area.
While the newly released draft SEP clarifies EEOC’s future enforcement priorities, it does not expand on the guidance issued by EEOC and the Department of Justice in May 2022 for employers to avoid discrimination when using AI tools. Until the EEOC or local jurisdictions like New York City introduce more specific compliance requirements and guidance for employers to avoid potentially discriminatory practices, employers may want to take advantage of the Institute for Workplace Equality’s Technical Advisory Committee report of October 2022, which “provides an analysis of and Recommendations on how to address key compliance issues currently emerging in relation to the use of AI in the workplace.”
The EEOC will vote on a final version of the SEP. The public has until February 9, 2023 to submit comments about the Federal Register.