Employers frequently rely on automated systems (including those incorporating artificial intelligence (AI)) to make employment decisions, including recruitment, hiring, promoting employees, and monitoring performance. Employers must ensure that the use of these systems does not violate Title VII. Today, the EEOC released its new technical assistance document, “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964.” The scope of the document “is limited to the assessment of whether an employer’s ‘selection procedures’ . . . have a disproportionately large negative effect on a basis that is prohibited by Title VII.” In other words, the document focuses on whether a particular employment practice has a disparate impact on the basis of race, color, religion, sex, or national origin.
EEOC explains that in many cases employers may be responsible for the use of automated tools/AI even if they are administered by an outside vendor. It also explains the four-fifths rule, which helps employers determine whether the selection rate for one group is substantially different than the selection rate of another group. The four-fifths rule states “that one rate is substantially different than another if their ratio is less than four-fifths (or 80%).” EEOC also explains that the four-fifths rule is a rule of thumb and may not be an appropriate measure of disparate impact even if the rule is satisfied. Please see https://www.eeoc.gov/select-issues-assessing-adverse-impact-software-algorithms-and-artificial-intelligence-used?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term= for the entire document.
The EEOC document serves as a reminder for employers to analyze their own employment practices, including tools and programs, to determine whether any have a disproportionately large negative effect on a prohibited basis or treat protected groups differently.
If you have questions or need assistance in complying with the technical document, please contact TMI.