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Concerns about artificial intelligence and other technologies — and their relationship to employment law — dominated a Sept. 22 hearing with the federal government’s workplace discrimination watchdog.
US Equal Employment Opportunity Commission He wrapped up the series Three listening sessions last week culminated in public input as he released his next strategic implementation plan. While the witnesses touched upon various issues at the event, the labor and employer representatives asked the commission to provide transparency in the field of technology.
AI, technique as discrimination.
During the 5-hour event, labor advocates voiced concerns about hiring systems and difficult-to-use technology that inadvertently spread discrimination.
Daryl Rodriguez, deputy general counsel for the Lawyers’ Committee for Civil Rights Under Law, called on the EEOC to devote resources to addressing “biased algorithmic screens” in hiring and hiring processes, which she said often have a negative impact on black workers and others. Colored workers.
Emily Martin, on behalf of the National Women’s Law Center, also asked the EEOC to focus on the issue, saying that such employment technology could “repeated and systematized harmful and biased decisions, and made it difficult to challenge such discrimination because of the black box nature of those decision-making processes.”
Holly Bigelow, director of government affairs at AARP’s financial security group, emphasized the ways in which algorithms and screening technology can exclude older workers. She described application systems that require applicants to include birthdays or graduation dates in non-skippable fields. Some sites even use drop-down menus with dates that go back only one year — 1980, for example — and exclude those who were born or attended college before that.
Several witnesses praised the EEOC Artificial intelligence and algorithmic equity initiativesIt was launched by the agency in 2021 to shed light on issues of AI bias – but it noted that more work needs to be done in this area. “We … urge the Commission to increase the resources needed to effectively address these complex issues by hiring staff with experience in AI and assisting investigators in identifying biased AI practices.
Some have noted that technology can be biased beyond the hiring and hiring process. “Most of the cases I’m dealing with these days involve an employee using technology that’s not accessible,” says Eve Hill, a disability rights attorney and partner at Brown Goldstein & Levy. Many employers don’t consider accessibility when investing in new technology, she said, but “purchasing non-accessible technology is not an excuse to exclude people with disabilities, and people with disabilities should not have to suffer the consequences of ill-advised purchasing decisions.”
The need for guidance
Employer advocates, represented by the Association of Human Resources Management and Labor Law Attorneys, said more clarity is needed on how employers can use AI in hiring and other situations.
Emily Dickens, SRMA’s head of government affairs and corporate secretary, points to the prevalence of automation and AI in HR, with 79% of organizations surveyed either using it or planning to use it in the next five years. years.
Dickens cautioned against heavy regulation of employer use of technology. “3 out of 5 organizations report that their organization’s hiring quality has improved as a result of using AI. This is not the time to impose heavy regulatory restrictions that hold back key HR functions and hinder the ability to create and identify talent pipelines.
“We need more guidance” on AI, said David Forney, founder of the employment law firm Fortney & Scott, adding that the EEOC’s earlier effort to advise on the use of AI in compliance with the Americans with Disabilities Act is “a good start.”
Fortney urged the EEOC to consider it Future report “Try to organize” in collaboration with the Workplace Equity Institute’s AI Technical Advisory Committee and other federal agencies, expected in the coming months. At a minimum, “consistent application of the principles of Title VII [is] must”
Darrell Gay, a partner at Arent Fox Schiff, asked him to develop more AI educational materials and to meet and collaborate with attorneys representing employers. “We want to partner with you,” he said.
Surveillance concerns are widespread.
In addition to AI’s hiring and accessible technology concerns, several witnesses who spoke at the event cited concerns about the use of surveillance. Judy Conti, director of government affairs at the National Employment Law Project, urged the EEOC to develop guidelines to prevent employers from using surveillance technology in discriminatory ways.
Conti noted that the topic of surveillance is a concern for industries such as warehousing, retail and hospitality. “For example, we know there are warehouse workers who are made to wear their equipment during the day to make sure they hit pre-established targets,” she says. Employees in these situations are sometimes fired for not meeting these targets, and avoid going to the bathroom or taking other breaks out of fear. “There’s a real power imbalance,” she said.
Surveillance technology can also be used disproportionately against specific groups, witnesses noted. “We know from research studies … that there’s often a greater lack of trust, for example, that black workers don’t work as hard as white workers, or as Latinx workers, so they can be disciplined. to worse surveillance,” Conti said. Such targeted monitoring can cause some employees to suffer in a way that others don’t because their mistakes are given so much attention, she said.
People with disabilities can also find themselves unfairly targeted, Hill said. Tracking systems such as facial recognition, eye tracking and mouse tracking can harm those who “look, move or act because of a disability,” she said. “Therefore, the EEOC must address the need to provide accommodations in those systems.”
Throughout the event, EEOC commissioners asked several questions about how to improve the agency’s AI resources and acknowledged the importance of continuing to develop tools for employers and employees.
The commission’s listening session – with the first sessions August 22 And September 12 – Announces the EEOC’s strategic enforcement plan for fiscal years 2022-2026.
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