The selection rate for a particular group can be calculated by dividing the number of individuals hired, promoted, or otherwise selected by the total number of candidates in that same group.
As a result, employers should look to the Guidelines for direction on the appropriate adverse impact analysis.Īccording to the Guidelines, a selection procedure has an adverse impact when the selection rate for members of a protected group is “substantially” less than the selection rate for those of another group. According to the EEOC, the definition of “selection procedures” in the Guidelines is broad enough to include algorithmic decision-making tools when they are used for the purpose of making or informing decisions related to hiring, promotion, and termination. The technical assistance analyzes AI employment tools’ potential for adverse impacts under the EEOC’s 1978 Uniform Guidelines on Employee Selection Procedures (the “Guidelines”). These definitions are broad, encompassing HR tools used throughout the employment cycle-from the candidate selection process, such as resume scanners or “chatbots” that screen job candidates for pre-defined requirements, to employee work habits, like keystroke monitoring software. Finally, the EEOC adopts Congress’s definition of “Artificial Intelligence” from the National Artificial Intelligence Act of 2020 as a “machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments.”
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Second, according to the EEOC, an “algorithm” is a “set of instructions that can be followed by a computer to accomplish an end.” The EEOC notes that algorithms are used by human resources software to evaluate, rate, and make decisions about job candidates and employees throughout various stages of employment. In the employment context, the EEOC appears most concerned with resume-screening software, video interviewing software, and employee monitoring/management software, among others. It then defines “application software” (also referred to as an “application”) as a type of software that performs or helps a user perform a specific task.
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First, the EEOC defines “software” as any information technology program or procedure that provides instructions to a computer on how to perform a given task or function. The technical assistance defines three central terms concerning automated systems and AI to explain how they relate to the Title VII analysis. To avoid violating Title VII and facing discrimination claims, the EEOC proposes proactive and ongoing assessments of all AI and algorithmic decision-making tools used by employers. While Title VII covers both the prohibition of disparate treatment and adverse impact discrimination, the EEOC’s technical assistance focuses on the latter.
Title VII makes it unlawful for an employer to discriminate against any individual based on race, color, religion, sex, or national origin. In the technical assistance, the EEOC highlights that employers may violate Title VII of the Civil Rights Act of 1964 (Title VII) if their algorithmic decision-making tools have an adverse impact on protected classes, even where those tools are designed or administered by third parties. The Equal Employment Opportunity Commission (EEOC) recently issued a technical assistance document to help employers avoid discriminating against job applicants and employees when using AI for employment decisions. Key Point: The EEOC released guidance to employers on how to assess adverse impacts when using artificial intelligence (AI) in the employment decision-making process.
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