Federal Agencies Join to Combat AI Bias and Discrimination

The EEOC, DOJ, CFPB, and FTC issued a joint statement emphasizing their commitment to enforcement against bias and discrimination in artificial intelligence systems. The agency quartet stated unequivocally that existing nondiscrimination laws and their enforcement authority already apply to automated systems and highlighted a concerted effort to better regulate uses of AI, particularly in employment decisions. 

“Harmful outcomes:” While acknowledging the potential of artificial intelligence, the statement emphasizes that “although many of these tools offer the promise of advancement, their use has the potential to perpetuate unlawful bias, automate unlawful discrimination, and produce other harmful outcomes.” The agencies identified improper datasets, lack of transparency (the “black box”), and flawed design as potential root issues contributing to bias in automated systems. 

Enforcement commitments under existing authority: The statement asserts that each of the four agencies already has the tools and legal authority to regulate uses of artificial intelligence and enforce against potential discrimination and bias resulting from such uses. “Today, our agencies reiterate our resolve to monitor the development and use of automated systems and promote responsible innovation.” 

More regulation, coming soon: While the use of artificial intelligence and algorithmic decision making in the workplace has skyrocketed in the last five years, lawmakers have been slow to keep up. The wild west days of unregulated uses of artificial intelligence may be coming to a rapid close, however, with the four-agency statement serving as the latest reminder. In the past year alone, the Biden administration has taken several steps focusing on regulating the use of artificial intelligence and algorithmic decision-making, including:

• In February, the EEOC held a hearing on AI discrimination, to which HR Policy submitted comments. The EEOC previously issued guidance on the employer obligations under the ADA as they relate to the use of AI in May 2022.
  
  
• Earlier this month, the Biden administration, through the National Telecommunications and Information Administration, requested comment on potential regulation of AI tools.
  
  
• In August 2022, the FTC issued an advance notice of proposed rulemaking on the use of AI and data privacy. HR Policy submitted comments.
  
  
• In October 2022, the NLRB’s General Counsel issued a memo outlining how the use of automated management practices could violate federal labor law. 

Outlook: Greater regulation of the uses of artificial intelligence and algorithmic decision-making is clearly on the horizon. With two rulemakings already in the pipeline and a high likelihood of further guidance or regulation coming from the EEOC, employers can expect increased focus and potential restrictions on using automated systems in the workplace. HR Policy will remain engaged in this area to ensure that further innovation and reasonable use of automated systems is not unnecessarily restricted.