The Equal Employment Opportunity Commission (EEOC), along with the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), have been putting the world on notice that these civil rights law enforcement agencies are very interested in how employers are rolling out a tidal wave of new artificial intelligence (AI) tools, particularly those used to select candidates for employment opportunities.
And to put a finer point on it, the EEOC has announced the settlement of a case that is being reported as the first discrimination in hiring involving AI.
The company is iTutorGroup, Inc. and its related entities, and they hire tutors in the United States to provide online, English-language tutoring services to adult and minor students in China. Every year the organization hires thousands of tutors who submit applications through their website. Allegedly, the company had also programmed their application software to automatically reject female applicants age 55 and older, and male applicants age 60 and older, adding an odd and seemingly unnecessary sex discrimination flavor to the mix.
The EEOC’s announcement when the case was originally brought noted that the case is “an example of why the EEOC recently launched an Artificial Intelligence and Algorithmic Fairness Initiative.” The announcement went on to note, “Workers facing discrimination from an employer’s use of technology can count on the EEOC to seek remedies” (emphasis added).
At no point, however, did the EEOC actually claim that the technology involved in this case included “artificial intelligence.” In fact, this appears to be a case of an organization simply misusing a relatively simple automated screening tool.
According to the EEOC, the company surprisingly refused conciliation efforts and still refuses to concede wrongdoing. Nevertheless, under the terms of the consent decree the “illegally screen for age” tool will be permanently turned off and the company will be subject to monitoring for a period of five years. The company will also pay damages to the Plaintiffs to the tune of $365,000 (to be split among a still undetermined class that is expected to number in the hundreds).
But at the end of the day, this was just a run-of-the-mill case of age discrimination in hiring, not the first showdown over the use of artificial intelligence as has been reported.
Have no doubt, though, that those cases are coming. They will be difficult, complicated, and messy for those involved. And they will eventually define the landscape of AI in employment. iTutorGroup is not part of that conversation, but someone will be.
If you have questions or concerns about your own organization’s employment selection practices, have EEO questions more generally, or just want to noodle with someone about the future of AI, feel free to drop us a line here at BCGi@Biddle.com.