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Written By Digital Content Editor Thomas Ahearn
On April 25, 2023, four United States federal agencies jointly pledged to uphold a commitment to the core principles of fairness, equality, and justice as emerging automated systems such as “artificial intelligence” or “AI” have increasingly impacted civil rights, fair competition, consumer protection, and equal opportunity.
The Civil Rights Division of the U.S. Department of Justice (DOJ), the Consumer Financial Protection Bureau (CFPB), the Federal Trade Commission (FTC), and the U.S. Equal Employment Opportunity Commission (EEOC) together issued a joint statement outlining the enforcement of their laws and regulations for AI usage.
- The DOJ’s Civil Rights Division enforces constitutional provisions and federal statutes prohibiting discrimination across many facets of life, including in education, the criminal justice system, employment, housing, lending, and voting. Among the Division’s other work on issues related to AI and automated systems, the Division recently filed a statement of interest in federal court explaining that the Fair Housing Act applies to algorithm-based tenant screening services.
- The CFPB supervises, sets rules for, and enforces numerous federal consumer financial laws and guards consumers in the financial marketplace from unfair, deceptive, or abusive acts or practices and from discrimination. The CFPB published a circular confirming that federal consumer financial laws and adverse action requirements apply regardless of the technology being used. The circular also made clear that the fact that the technology used to make a credit decision is too complex, opaque, or new is not a defense for violating these laws.
- The FTC protects consumers from deceptive or unfair business practices and unfair methods of competition across most sectors of the U.S. economy by enforcing the FTC Act and numerous other laws and regulations. The FTC issued a report evaluating the use and impact of AI in combatting online harms identified by Congress. The report outlines significant concerns that AI tools can be inaccurate, biased, and discriminatory by design and incentivize relying on increasingly invasive forms of commercial surveillance. The FTC has also warned market participants that it may violate the FTC Act to use automated tools that have discriminatory impacts, to make claims about AI that are not substantiated, or to deploy AI before taking steps to assess and mitigate risks. Finally, the FTC has required firms to destroy algorithms or other work product that were trained on data that should not have been collected.
- The EEOC enforces federal laws that make it illegal for an employer, union, or employment agency to discriminate against an applicant or employee due to a person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information (including family medical history). In addition to the EEOC’s enforcement activities on discrimination related to AI and automated systems, the EEOC issued a technical assistance document explaining how the Americans with Disabilities Act applies to the use of software, algorithms, and AI to make employment-related decisions about job applicants and employees.
“Many automated systems rely on vast amounts of data to find patterns or correlations, and then apply those patterns to new data to perform tasks or make recommendations and predictions. While these tools can be useful, they also have the potential to produce outcomes that result in unlawful discrimination,” they stated.
“Our agencies reiterate our resolve to monitor the development and use of automated systems and promote responsible innovation,” the joint statement concluded. In addition, news releases about the statement were issued by the DOJ, CFPB, FTC, and EEOC that included statements from the leaders of the four Federal agencies.
- “As social media platforms, banks, landlords, employers, and other businesses that choose to rely on artificial intelligence, algorithms, and other data tools to automate decision-making and to conduct business, we stand ready to hold accountable those entities that fail to address the discriminatory outcomes that too often result,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “This is an all hands on deck moment and the Justice Department will continue to work with our government partners to investigate, challenge and combat discrimination based on automated systems.”
- “Technology marketed as AI has spread to every corner of the economy, and regulators need to stay ahead of its growth to prevent discriminatory outcomes that threaten families’ financial stability,” said CFPB Director Rohit Chopra. “Today’s joint statement makes it clear that the CFPB will work with its partner enforcement agencies to root out discrimination caused by any tool or system that enables unlawful decision making.”
- “We already see how AI tools can turbocharge fraud and automate discrimination, and we won’t hesitate to use the full scope of our legal authorities to protect Americans from these threats,” said FTC Chair Lina M. Khan. “Technological advances can deliver critical innovation—but claims of innovation must not be cover for lawbreaking. There is no AI exemption to the laws on the books, and the FTC will vigorously enforce the law to combat unfair or deceptive practices or unfair methods of competition.”
- “We have come together to make clear that the use of advanced technologies, including artificial intelligence, must be consistent with federal laws,” said Charlotte A. Burrows, Chair of the EEOC. “America’s workplace civil rights laws reflect our most cherished values of justice, fairness, and opportunity, and the EEOC has a solemn responsibility to vigorously enforce them in this new context. We will continue to raise awareness on this topic; to help educate employers, vendors, and workers; and where necessary, to use our enforcement authorities to ensure AI does not become a high-tech pathway to discrimination.”
In October 2022, the White House Office of Science and Technology Policy (OSTP) released a Blueprint for an AI Bill of Rights that consisted of a set of five principles and associated practices to help guide the design, use, and deployment of automated systems to protect the rights of the American public in the age of AI.
Employment Screening Resources (ESR) is a service offering of ClearStar, a leading Human Resources technology company that specializes in background checks, drug testing, and occupational health screening. ClearStar helps employers comply with regulations for the use of AI in employment decisions. To learn more, contact ClearStar.
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