EEOC Claims That AI Software Discriminated Against Older Applicants

In a ProVisors’ meeting this morning the group leader asked the 25 individuals in attendance to discuss how they are using AI and how they expect their industry to change due to AI. It seems everyone is talking about AI, using AI or thinking about using it. I received an article from Mark Spring, Office Managing Partner, CDF Labor Law Blog Editor & Chair of CDF’s Traditional Labor Law Practice Group. It speaks to a recent settlement between the EEOC and a company who used AI in recruiting employees.

Bloomberg Law reported earlier today that the Equal Opportunity Commission (“EEOC”) reached a settlement for $365,000 with iTutorGroup, Inc. after the federal agency filed a complaint against the employer alleging that its artificial intelligence (“AI”) software automatically rejected female tutor applicants over 55 and male tutor applicants over 60.

According to the complaint, the age exclusion was discovered when a rejected applicant submitted a new identical application with a more recent birth date. The EEOC claimed over two hundred applicants were adversely affected.

Although this is not a California complaint/settlement, this is the first AI case settlement we are aware of. The case and settlement illustrate that the EEOC is willing to aggressively prosecute cases in the AI area as part of its Artificial Intelligence and Algorithmic Fairness Initiative. This settlement should not be ignored by the employer community and it further emphasizes the need for California employers who use artificial intelligence for recruiting/screening to:

1. Ensure they understand how the software is screening applicants;
2. Become familiar with the guidelines and technical assistance that is out there including the EEOC Technical Assistance Publication: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964 which we wrote about previously back in May;
3. Monitor AB 331 now pending in the California Assembly, which if passed would regulate how employers can use automated decision tools such as artificial intelligence and give the state the right to prosecute violations of the bill’s provisions; and
4. Monitor the California Civil Rights Council’s proposed regulations regarding AI and automated decision-making systems.

I think Mark’s blog article hits the mark, no pun intended, as employers need to be careful about using AI in employment matters and with their employees.

A company can jump right in but needs to be careful that they are still in compliance with labor law. At JorgensenHR we have used AI to assist in some LinkedIn posts, blog articles and internal memos but are cautious about AI’s use in HR matters. Our clients are starting to ask about HR and AI and we are taking a slow and steady approach.

If you want more information about HR, Labor Law and AI please contact us at 661-600-2070 or info@jorgensenhr.com.

If you want to contact Mark Spring, he can be reached at 916-361-0991 or mspring@cdflaborlaw.com. The firm’s website is https://www.cdflaborlaw.com/ and blog is at https://www.callaborlaw.com/.