EEOC AI Anti-Discrimination Guidance

EEOC AI Anti-Discrimination Guidance

On May 18, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) released a technical assistance document warning employers that improper deployment of artificial intelligence (AI) to assist with employment-related decisions, such as recruiting, hiring, retaining, promoting, transferring, performance monitoring, demoting, or terminating, could violate Title VII of the Civil Rights Act (the federal anti-discrimination law). Title VII prohibits discrimination on the basis of race, color, national origin, religion, sex (including pregnancy, sexual orientation, and gender identity), disability, age (40 or older) and genetic information. Not only does Title VII prohibit intentional discrimination (or “disparate treatment” in employment) based on such protected characteristics, but it also generally prohibits employers from using neutral tests or selection procedures that have the effect of disproportionately excluding persons based on such characteristics if they are not “job related for the position in question and consistent with business necessity” (or “disparate impact” or “adverse impact” discrimination). The EEOC makes clear that an employer’s use of an algorithmic decision-making tool would constitute a selection procedure. To ensure that any use of AI to assist with employment-related decisions does not run afoul of federal anti-discrimination laws, employers – including production companies that may use algorithmic decision-making tools to decide whether to hire cast and crew – should review the EEOC’s latest guidance (found here) and consult with their labor counsel.