As we previously discussed with respect to the rollback of the EEOC Enforcement Guidance on Harassment in the Workplace (“2024 Memo”), recission of guidance does not change employer compliance obligations under the law.

In 2021, the EEOC launched its initiative for Artificial Intelligence and Algorithmic Fairness, in which it addressed potential bias in the workplace resulting from the use of algorithms and AI. The EEOC recognized the value of technology but also the potential technology “tools may mask and perpetuate bias or create new discriminatory barriers to jobs,” and noted the EEOC’s commitment to “ensure that these new technologies do not become a high-tech pathway to discrimination.” Following  a recent Executive Order aimed at reducing government oversight of artificial intelligence (AI), both the Equal Employment Opportunity Commission (EEOC) and the United States Department of Labor (DOL) rescinded guidance on discrimination arising from the use of AI in the workplace.

As with other agency rollback of guidance, federal, state, and local anti-discrimination laws still apply to AI use in hiring and workplace decisions. Employers need to be aware of liability for potential discrimination that can arise from AI such as:

• Disability discrimination resulting from AI screening tools that disqualify candidates based on characteristics of a disability or AI tools that do not ensure reasonable accommodations are available when being utilized.
• Disparate Impact discrimination resulting from AI bias that excludes protected groups, even if unintentionally.
• AI tools developed by third parties. Employers are responsible for ensuring that use of AI is not discriminatory. Use of AI tools developed and implemented by third parties does not shield the employer from liability if the discrimination results from the tool’s application.

In addition, employers should develop AI use policies and implement best practices such as:

• Regular audits of AI systems for potential bias.
• Review vendor AI agreements and require algorithmic transparency.
• Keep informed of new laws and regulations with respect to AI.
• Use Humans: Humans should be monitoring and reviewing employment decisions and involved in the final decision-making process.
• Ensure that any private information provided by applicants remains private, and does not become part of the AI tool’s public algorithm.

As AI becomes more integrated into the workplace, employers will need to be more sophisticated in their use and monitoring of AI applications for discriminatory impacts and bias. If you or your organization have questions regarding obligations to audit and eliminate bias or discrimination associated with AI tools, contact Wiley Reber Law for legal advice that works.