Adam S. Forman, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Detroit and Chicago offices, was quoted in the Bloomberg Law Daily Labor Report, in “Busting Companies for AI Bias in Hiring is Tough Task for EEOC,” by Riddhi Setty and Annelise Gilbert.

Following is an excerpt:

The EEOC’s high-profile effort to target biased hiring decisions made by companies’ artificial intelligence software is poised to face big challenges, as the opaque nature of these tools often prevents applicants from knowing they’re the victims of discrimination at all.

The US Equal Employment Opportunity Commission settled its first-ever AI-based hiring discrimination case on Thursday. A group of job seekers received $365,000 in the deal, resolving the commission’s suit against iTutorGroup Inc., a company that allegedly programmed its recruitment software to automatically reject older applicants.

Employers can use AI tools to screen applicants and their resumes for desired qualities and experiences, which in turn can lead to intentional or unintentional discrimination by rejecting them based on race, sex, age, or other characteristics protected by federal law. Many AI tools, which are becoming increasingly popular in HR departments, are trained on historical data that contains built-in biases.

The EEOC has repeatedly emphasized its focus on addressing AI discrimination, launching a major initiative and issuing guidance. Chair Charlotte Burrows earlier this month called the technology the “new civil rights frontier.”

The commission also signaled its interest in tackling AI-based hiring bias through its draft strategic enforcement plan in January.

But employment attorneys say the agency is still fighting an uphill battle, as it typically relies on job seekers and employees to flag potential bias by filing charges with the commission. The secrecy inherent in AI tools makes that difficult for most job applicants. …

EEOC’s Work

Despite the EEOC’s emphasis on addressing AI bias, there hasn’t been any known litigation on the issue by the commission yet, aside from the iTutorGroup settlement.

While AI in HR technology is relatively new, and the EEOC may only be in the early stages of receiving them, the challenges ahead are apparent. …

In the case of iTutorGroup, for instance, an applicant only realized bias might be at play when they submitted a second application with an earlier birth date listed, according to court documents. They were automatically offered an interview, instead of being rejected on their second try, the filings said.

Even if a lawsuit alleging bias in AI reaches the discovery stage, the EEOC and plaintiffs may still have a hard time gaining access to audits the software has undergone that may support bias. If an employer does an audit at the direction of counsel, it can be considered privileged, according to management-side attorney Adam Forman of Epstein Becker Green P.C.

Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.