As companies increasingly deploy AI tools to combat bias in the workplace – everything from hiring to compensation and promotion decisions – the technology providers of AI software may come under scrutiny if their products don’t deliver as promised. That could include enforcement actions by government agencies concerned about AI’s potential for disparate impacts.
Gary Friedman, a partner in Weil Gotshal & Manges’ Employment Litigation Practice Group, has been tapped by the EEOC as a thought leader in this space, and has been speaking and writing on fast-moving developments concerning employment law implications of AI. One such burgeoning issue he addressed during recent testimony at the EEOC was the increasing drumbeat for regulatory oversight of artificial intelligence that could target tech vendors as well as businesses for any misuse of AI.
He referenced a new law set to take effect in New York City in July that would be the first in the nation to police proper use of AI tools for workplace hiring and recruitment. And California has proposed legislation that “takes a page from the European Union’s General Data Protection Regulation by imposing liability (for bias) on vendors of AI tools,” he notes.
The federal EEOC has also signaled it could pursue actions against outside job-seeking platforms over alleged discrimination found from their algorithm-based platforms under Title VII laws.
Mr. Friedman, who regularly works with companies as they integrate AI to build more diverse work forces, was invited to testify before the EEOC earlier this year about the growing use of AI in employment recruitment, hiring and advancement decisions.
In his testimony, he described the importance of harnessing data analytics with human oversight to ensure better judgment and decision making – and that even the best software requires professional interpretation and implementation.
“An approach to regulating this space that allows employers leeway to regularly audit, revise, and (if needed) scrap AI tools that result in discriminatory outcomes would allow for needed experimentation with AI,” Mr. Friedman said in his remarks to the EEOC. He referenced measures in Massachusetts allowing employers to defend themselves against discrimination claims if they can prove that they’ve completed good faith evaluations and made progress in eliminating wage or promotion differentials based on age or gender.
“At bottom, due to the emergence of powerful social movements over the past half-decade and the expansive federal, state and local regulation of issues that intersect with Title VII, the ADEA, the ADA and the Equal Pay Act, employers’ awareness of and focus on matters of importance to legally protected groups is at an all-time high, and as they embark on deploying artificial intelligence tools in the workplace, they do so with these principles top of mind,” Mr. Friedman said.
“This is an inflection point at which the EEOC can partner with the business community to issue guidance that will allow employers to continue to increase their focus on diversity, equity and inclusion while giving them room to use these tools to enhance workplace culture and performance.”
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