Big Brother Is Watching for AI Bias in Your Employment Lifecycle

With an increasing number of organizations integrating AI-related technologies into every stage of the employment lifecycle, the adoption of AI is accelerating. AI-related technologies streamline certain processes and make others more objective, but they also present certain challenges and legal risks.

Although no federal law specifically regulates the use of AI-related technologies, federal regulators, including the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ), have recently been focused on the use of AI in the workplace, as reported in a Kellydrye.com blog post.

The Federal Trade Commission (FTC), the Consumer Financial Protection Bureau (CFPB), the DOJ’s Civil Rights Division, and the EEOC issued a joint statement in April 2023 noting that existing laws apply. The statement affirmed that each agency or department would use its existing statutory authority to protect against unlawful discrimination in AI systems.

Illinois, Maryland, and New York City have enacted laws that regulate the use of such tools in the employment context. Several other states — including California, Massachusetts, New Jersey, and Vermont — are also considering legislation that would regulate AI in the workplace.

Organizations using these tools in the employment context should take steps to ensure legal compliance and help avoid regulatory scrutiny:

• Assess current uses to determine whether any existing laws and regulations are applicable.
• Conduct bias audits, including those provided by third-party vendors,
• Prepare and distribute notices to job applicants and/or employees regarding the use of AI and obtain consent.
• Consider implementing a dispute process so that job applicants and/or employees can dispute and correct inaccurate information.
• Ensure that the organization is aware of proposed and recently enacted laws and regulations and is meeting its obligations.