Written By Digital Content Editor Thomas Ahearn

The U.S. Equal Employment Opportunity Commission (EEOC) has reached an agreement with a tutoring company that “allegedly programmed its recruitment software to automatically reject older applicants” to settle “its first-ever” Artificial Intelligence (AI) discrimination in hiring lawsuit, according to a report from BloombergLaw.com.

BloombergLaw.com reported that the tutoring company “will pay $365,000 to a group of rejected job seekers age 40 and over” as directed by a consent decree filed in the U.S. District Court for the Eastern District of New York on August 9, 2023. However, the tutoring company admitted no wrongdoing under the consent decree.

The EEOC sued the tutoring company in May 2022 for allegedly rejecting more than 200 qualified applicants because of their age by programming “their tutor application software to automatically reject female applicants age 55 or older and male applicants age 60 or older,” according to a press release from the EEOC

The alleged conduct by the tutoring company violates the Age Discrimination in Employment Act (ADEA) of 1967 which prohibits employers from discriminating based on age. The EEOC filed suit in a New York District Court after the parties were unable to reach a pre-litigation settlement through the EEOC’s conciliation process.

In May 2023, the EEOC – which enforces federal laws prohibiting employment discrimination – released a technical assistance document on “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964.”

The document from the EEOC is focused on preventing discrimination against job seekers and workers and explains the application of key established aspects of Title VII of the Civil Rights Act (Title VII) to an employer’s use of automated systems, including those that incorporate AI, according to an EOCC press release.

Employers increasingly use automated systems, including those with AI, to help them with a wide range of employment matters, such as selecting new employees, monitoring performance, and determining pay or promotions. Without proper safeguards, their use may run the risk of violating existing civil rights laws.

The EEOC’s technical assistance document discusses adverse impact, a key civil rights concept, to help employers prevent the use of AI from leading to discrimination in the workplace and builds on previous EEOC releases of technical assistance on AI and the Americans with Disabilities Act and a joint agency pledge.

The technical assistance document also answers questions employers and tech developers may have about how Title VII applies to the use of automated systems in employment decisions and assists employers in evaluating whether such systems may have an adverse or disparate impact on a basis prohibited by Title VII.

“As employers increasingly turn to AI and other automated systems, they must ensure that the use of these technologies aligns with the civil rights laws and our national values of fairness, justice, and equality,” EEOC Chair Charlotte A. Burrows stated in the press release. “This technical assistance document will aid employers.”

The EEOC’s technical assistance document is part of its Artificial Intelligence and Algorithmic Fairness Initiative, which works to ensure that software – including AI – used in hiring and other employment decisions complies with the federal civil rights laws that the EEOC enforces. To learn more about the EEOC, visit www.eeoc.gov.

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