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.”

On Monday, the United States Supreme Court ruled that claims brought by African American firefighters who had sued the City of Chicago alleging that a hiring test was discriminatory were not time barred.  Lewis v. City of Chicago, No. 08-974, 560 U.S. ___ (2010).  The City conceded that its use of the hiring test was unlawful, but argued that the firefighters claims were untimely.  Addressing only the statute of limitations issue, the Court issued a unanimous decision in favor of the firefighters, holding that the firefighters timely filed a disparate impact claim based on the continued use of the hiring test.