What happened?

On April 29, 2024, the OFCCP released a new guidance document named “Artificial Intelligence and Equal Employment Opportunity for Federal Contractors.” This document provides clarity on the compliance responsibilities of federal contractors when utilizing AI and automated decision-making tools.

What are the details?

The OFCCP’s guidance pertains to the EEO compliance duties of federal contractors and subcontractors. It comprises two parts: (1) an FAQ titled “Common Questions About the Use of AI and EEO,” and (2) a set of “promising practices” for the application and development of AI in the context of EEO.

• The FAQ section of the guidance emphasizes that federal contractors’ use of AI does not exempt them from potential EEO and nondiscrimination violations in the workplace.
• The guidance provides “promising practices” (not mandatory) for contractors to adopt, aiming to prevent worker harm and foster reliable AI use. These practices cover employee notification, general AI usage, vendor-created AI system due diligence, and disability inclusion in AI.

The OFCCP’s guidance does not elaborate on the next steps for the implementation of these promising practices.

Main Bites:

• Federal Contractors Should Proactively Mitigate Risks Associated with the Use of AI: The guidance instructs federal contractors to routinely monitor whether AI and automated systems have a disparate or adverse impact on protected groups and take actions to reduce those impacts or use different tools.
• Obligations and Liability Remain on the Employer: The guidance further clarifies that federal contractors are ultimately responsible for meeting nondiscrimination and affirmative action obligations regardless of whether they use third-party vendors to implement such tools.

Key Bites:

• Level Setting
• Compliance Obligations
• Third-Party AI Vendors
• Key Practices for Federal Contractors
• AI Legal Landscape

Business Considerations

• As an employer, considering the OFCCP’s guidance and the regulatory focus on AI, it is recommended that:
• If you are a federal contractor using AI, review your current AI or automated systems used for hiring or other employment decisions. This includes checking whether third-party vendors are also using such technology.
• Review your contracts with vendors to ensure you have access to essential information about the data used or collected by the technology, and how the systems are designed. This will enable you to provide such information to federal regulators when necessary
• Private employers should take note of how AI can implicate anti-discrimination law, even though the guidelines only apply to federal contractors.

Source References

• Artificial Intelligence and Equal Employment Opportunity for Federal Contractors

Resources

• Office of Federal Contract Compliance Programs

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