On October 30th, 2023, President Biden issued an Executive Order (EO) addressing discrimination caused by artificial intelligence (AI), amongst other topics. 

The White House announced this EO in seeking to prevent AI from leading to and deepening discrimination, bias, and other issues in justice, healthcare, and housing. 

Now, agencies will be empowered to combat algorithmic discrimination, while enforcing existing authorities to protect anti-discrimination rights and safety. 

In summary, the Executive Order: 

• Calls for clear guidelines to keep AI algorithms from being used to exacerbate discrimination by landlords, Federal benefits programs, and Federal contractors.
• Tackles algorithmic discrimination through training, technical assistance, and coordinates with the Department of Justice and Federal civil rights offices for best practices to investigate and prosecute AI civil rights violations.
• Ensures fairness throughout the criminal justice system by developing best practices for the use of AI in sentencing, parole and probation, pretrial release and detention, risk assessments, surveillance, crime forecasting and predictive policing, and forensic analysis.

The Biden Administration Blueprint for an AI Bill of Rights sets out steps those using AI can take to ensure fairness and equality. The steps include regularly checking for and addressing any biases in the design and use of AI systems, using diverse and representative data to avoid discrimination or unfair impacts, ensuring accessibility for people with disabilities during the design and development of AI systems, conducting tests to identify and address any disparities before and after the AI system is in use, providing clear oversight from organizations to ensure fairness, and conducting independent evaluations and sharing easy-to-understand reports, including test results and how any issues are being addressed, to ensure these protective measures are in place.

If companies fail to comply and use AI incorrectly to deepen discrimination and bias, this Executive Order will become the basis for discrimination lawsuits as a result of the incorrect use.

To learn more about the Executive Order click here. To read the Biden Administration Blueprint for an AI Bill of Rights click here. 

Welcome to the age of artificial intelligence (AI) and employment discrimination. 

The Equal Employment Opportunity Commission (EEOC) just published a new recourse on AI and Title VII, which is a reminder that employment decisions are happening more and more through the utilization of AI and employers are responsible if the AI "has an adverse impact on individuals of a particular race, color, religion, sex, or national origin." 

In fact, the EEOC makes clear that employers may be responsible even if "the tools are designed or administered by another entity, such as a software vendor." 

So, all employers, regardless of location, should pay attention to NYC's NYC Local law 144, which became effective on January 1, 2023, and attempt to comply, as it's a way to mitigate your exposure. The Local Law regulates the use of "automated employment decision tools" when it comes to employment discrimination in hiring and promotions by requiring annual audits, a summary of audit results on the employer's website, and other notice requirements to those subjected to screening by the tool. 

By following NYC's lead with audits, employers can avoid major discrimination lawsuits through the fault of AI rather than human actors. That said, the audits should go beyond NYC's requirements and hit each of the 5 areas the EEOC suggests will result in discrimination claims, including: 

1. Resume scanners that prioritize applications using certain keywords; 
2. Employee monitoring software that rates employees on the basis of their keystrokes or other factors; 
3. “Virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements; 
4. Video interviewing software that evaluates candidates based on their facial expressions and speech patterns; and
5. Testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or on a more traditional test.