Hunton Employment & Labor Perspectives

Ten U.S. senators are asking the U.S. Equal Employment Opportunity Commission to hone in on employers’ use of artificial intelligence (“AI”), machine-learning, and other hiring technologies that may result in discrimination.

The group of senators—Michael Bennet (D-CO), Cory Booker (D-NJ), Sherrod Brown (D-OH), Elizabeth Warren (D-MA), Catherine Cortez Masto (D-NV), Chris Coons (D-DE), Ron Wyden (D-OR), Tina Smith (D-MN), Chris Van Hollen (D-MD), and Jeff Merkley (D-OR)—jointly penned a December 8, 2020 letter to Chair Janet Dhillon. The letter urges that EEOC is responsible for combatting discrimination resulting from the use of hiring and other employment technologies. The senators voice concern about a number of hiring technologies, including:

• “[T]ools used in the employee selection process to manage and screen candidates after they apply for a job”;
• “[N]ew modes of assessment, such as gamified assessments or video interviews that use machine-learning models to evaluate candidates”;
• “[G]eneral intelligence or personality tests”; and
• “[M]odern applicant tracking systems.”

The lawmakers recognize that “hiring technologies can sometimes reduce the role of individual hiring managers’ biases,” but that “they can also reproduce and deepen systemic patterns of discrimination reflected in today’s workforce data.”

According to the senators, this risk of bias in technologies, combined with the currently high watermark in the unemployment gap between Black and Latino workers and their White counterparts, requires the EEOC to “conduct robust research and oversight of the industry and provide appropriate guidance.” The letter calls on the EEOC to provide information about its authority and capacity to investigate and audit the effects these technologies may have on protected classes and whether it has taken enforcement actions against employers who utilize discriminatory hiring assessments or processes.

This is not the first time high-profile legislators have expressed concern about the use of AI in the workplace. In 2018, a group of senators (including then-Senator, now-Vice President-elect, Kamala Harris) penned a similar letter to the EEOC, raising similar concerns with the use of facial recognition technologies in the workplace. The senators expressed doubts about whether the use of such technologies would reduce human biases or “actually amplify those biases.” Vice President-elect Harris is no stranger to the intersection of AI and policy, having dealt with technology policy issues both in Congress and in state and local politics in California.

This latest letter to the EEOC and the attention of the White House undoubtedly signal increased enforcement and regulatory activity on the horizon for employment-related uses of technology in the hiring and employment process. Employers should act now to evaluate their current and planned use of AI-based hiring and employment tools for potentially disparate impact on protected classes of workers. The scrutiny imposed on these tools by government agencies and lawmakers will only increase in 2021 and beyond.