• US Equal Employment Opportunity Commission (EEOC) released its Draft Strategic Enforcement Plan (SEP) 01/10/23, and it is collecting public comments until 02/09/23
  • The SEP lists “eliminating barriers in recruitment and hiring” for protected classes as a top priority, and specifies that “the use of automated systems, including artificial intelligence or machine learning” falls under that purview
  • The SEP builds flexibility into it to adapt to “developing issues” that AI or machine learning may introduce by allowing amendments in the future

The US Equal Employment Opportunity Commission (EEOC), which is the “primary federal agency charged by Congress with enforcing laws against employment discrimination”, has released their Draft Strategic Enforcement Plan (SEP) for public comment.  Comments are due by February 9th, where they may be considered before final approval.

This is a tremendously important regulation, and it sets forth the strategic direction and goals of the EEOC from 2023-2027.  

The EEOC listed the following as principles of the SEP:

  1. Take a more targeted approach and focus on priorities
  2. Take an integrated approach that ensures it operates as one national law enforcement agency, while adjusting for local and regional considerations
  3. Take accountability for delivering results to the public

It goes on to state that the newest SEP has made the following overarching updates:

  • Expands the vulnerable and underserved worker priority to include additional categories of workers…
  • Refines the recruitment and hiring priority…
  • Recognizes employers’ increasing use of automated systems…
  • Updates the emerging and developing issues priority to include employment discrimination…
  • Preserves access to the legal system…

The third bullet, in particular, will have significant relevance in how employers use their AI and machine learning tools for all aspects of the employment process, from hiring to firing.

The draft SEP goes on to list the top subject matter priorities the EEOC will target.  Priority one is “eliminating barriers in recruitment and hiring”, and the first bullet includes “the use of automated systems, including artificial intelligence or machine learning” that could exclude or adversely impact protected groups in the recruitment and hiring process.  Further down the list, AI and machine learning is mentioned again to cover instances where protected groups are “disproportionately” impacted.  Proportionality is a critical distinction in this context.

AI and machine learning in “employment decisions, practices, or policies” is also listed as a “developing issue” that the EEOC specifically targeted for potential amendments in the future, building into the SEP flexibility to adjust for emerging concerns as they arise.  This means that not only will employers need to assess their current practices and impacts, but that they will have to stay up-to-date as the landscape around AI and machine learning evolve.

What does all this mean for employers?

Like the NYC Local Law 144, or other emerging regulations throughout the country, it makes understanding AI tools, from how they work to how their outputs can impact others, of paramount importance.

Methods of dealing with these complexities include auditing the tools you are using, training your employees, and designing and enforcing AI governance plans.

If you’d like to learn more about how to prepare, email me at ken@proceptual.com