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EEOC issues guide to auditing AI for discrimination

13 Jun


Update Applicable to:

All employers

What happened?

On May 18, 2023, the Equal Employment Opportunity Commission (EEOC) released a technical assistance 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,” which focuses on preventing discrimination against job seekers and workers.

What are the details?

The technical assistance document explains the application of key established aspects of Title VII of the Civil Rights Act (Title VII) to an employer’s use of automated systems, including those that incorporate artificial intelligence (AI).

The EEOC clarified that employers cannot rely on a vendor’s statements that its AI tool complies with Title VII of the Civil Rights Act. Without proper safeguards, employers might violate Title VII when they use AI to select new employees, monitor performance, and determine pay or promotions, the EEOC said.

The EEOC’s new technical assistance document discusses adverse impact, a key civil rights concept, to help employers prevent the use of AI from leading to discrimination in the workplace. This document builds on previous EEOC releases of technical assistance on AI and the Americans with Disabilities Act and a joint agency pledge. It also answers questions employers and tech developers may have about how Title VII applies to the use of automated systems in employment decisions and assists employers in evaluating whether such systems may have an adverse or disparate impact on a basis prohibited by Title VII.

The technical assistance document is not binding but is instead meant to “encourage employers to conduct an ongoing self-analysis to determine whether they are using technology in a way that could result in discrimination,” the agency’s chair, Charlotte A. Burrows, said in a statement.

The document defines key terms and offers Q&As for AI audits. It also cautions employers that they may be responsible for such tools even if they are designed and administered by a vendor.

The EEOC’s technical assistance document is part of its Artificial Intelligence and Algorithmic Fairness Initiative, which works to ensure that software—including AI—used in hiring and other employment decisions complies with the federal civil rights laws that the EEOC enforces.

For more information, please see the links below:

Technical Assistance Document

EEOC News Release

Comprehensive Breakdown

Littler Law Firm Article

What do employers need to do?

Employers must provide reasonable accommodations when legally required and should minimize the chances that algorithmic decision-making tools will disadvantage individuals with disabilities, either intentionally or unintentionally. Employers using or considering the use of AI-driven tools in recruiting and selecting applicants and employees are advised to keep a close eye on developments, as both the federal government and state and local governments have indicated an intent to regulate in this space. 

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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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