With the rise of ChatGPT and other technology, artificial intelligence (“AI”) is all the rage these days. Although automated systems, with and without AI, certainly can make tasks easier and more efficient, they also have inherent risks. Further, when employers use AI in the workplace, they must ensure compliance with all applicable laws, regulations, and guidance. In response to AI’s increasing popularity, multiple regulatory bodies have issued additional memos, guidance, and information for employers to be fully informed.
On April 25, 2023, officials from the Federal Trade Commission (“FTC”), Department of Justice (“DOJ”), Consumer Financial Protection Bureau (“CFPB”), and the Equal Employment Opportunity Commission (“EEOC”), released a joint statement regarding their commitment to promote responsible innovation and use of automated systems and other forms of AI. Additionally, on May 18, the EEOC released a technical guidance document, “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964.” This guidance document specifically focuses on employers’ hiring practices and how AI might disproportionately affect different populations.
While employers typically monitor their traditional hiring practices for disproportionate impact on minority groups and to comply with employment laws, AI systems can make monitoring more difficult and complicated. Additionally, just as humans may be biased in making hiring decisions, AI systems may be biased based on the qualifications and characteristics they are programmed to look for or weed out. The EEOC stresses that employers are still responsible under Title VII if their automated systems or AI negatively impact protected groups. This liability remains even if an employer engages an outside vendor for their selection procedures. The EEOC advises employers to self-monitor and analyze whether their systems have a disparate impact. If one is discovered, employers are encouraged to revise the use of the tool or choose an alternative tool to quickly and efficiently address the problem. In their April joint statement, the FTC, DOJ, CFPB, and EEOC emphasized that “there is no AI exemption to the laws on the books” and the agencies will “vigorously enforce the law to combat unfair or deceptive practices.”
As AI continues to grow, employers will have to take additional care to comply with all laws and regulations.
If you have questions about the employment considerations of AI in the workplace, please reach out to any member of Gardner Skelton’s healthcare team.