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Clifford Chance

Clifford Chance


All Eyes on AI: More Guidance for U.S. Employers on the Use and Risks of AI in Hiring Decisions

May 26, 2023

On May 24, 2023, the U.S. Equal Opportunity Employment Commission issued a paper, "Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Action of 1964," with the aim of continuing to provide further guidance to employers on the uses and potential misuses of algorithmic decision-making tools. The AI Paper is not a new regulation or binding but is reflective of a continued trend of several government agencies providing guidance to employers given the risks that artificial intelligence can unwittingly create in the employment context. The AI Paper reminds employers that Title VII of the Civil Rights Act of 1964, which prohibits intentional discrimination, or "disparate treatment" based on race, color, religion, sex or national origin applies in the recruitment, monitoring, transfer, and evaluation of employees. The AI Paper is focused on recruitment (suggesting that more papers with more guidance for employers may follow) and incorporates the EEOC's Uniform Guidelines on Employee Selection Procedures under Title VII, issued in 1978, as the standard for assessing whether the AI tool selected is lawful for purposes of Title VII as well as more recent 2007 guidance.  An employer who seeks to deploy an AI tool should first confirm that its selection and use meets the requirements of the EEOC Guidance, or risk enforcement action. In fact, in its proposed Strategic Enforcement Plan, the EEOC has specifically highlighted as one of its priorities for 2023 and going forward is enforcement around employers' use of AI. While there have only been a handful of cases so far, given the announced priority of the EEOC and the noticeable increase in the use of AI tools by employers, we can expect an upward trend.

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