The Job Description | Vol. 33 Issue 2

Brave New World

The EEOC's Artificial Intelligence Initiative

By Jill Pedigo Hall

The use of artificial intelligence (AI) and machine learning in the workplace is growing exponentially – and specifically in hiring. Over the last two decades, web-based applications and questionnaires have made paper applications nearly obsolete. As employers seek to streamline recruitment and control costs, they have jumped to use computer-based screening tools such as “chatbots” to communicate with job applicants to schedule interviews, ask screening questions, and even conduct video conference interviews and presentations in the selection process. Employers of all sizes are creating their own systems, or hiring vendors who will design and implement keyword searches, predictive algorithms and even facial recognition algorithms to find the best-suited candidates. The algorithms in these computer models make inferences from data about people, including their identities, their demographic attributes, their preferences, and their likely future behaviors. Now faced with the impact of COVID-19 and the growing talent shortage, employers may see the use of AI as a more efficient way through the hiring process.

However, the use of AI technology is controversial. Researchers have voiced increasing concerns about the inherent risk of automating systemic bias. Because algorithms rely on historical datasets and human inputs, the technology can generate bias, or exacerbate existing bias. AI systems can generate unfounded conclusions that may be based upon protected characteristics.

In 2016, recognizing these issues of bias, the U.S. Equal Employment Opportunity Commission (the Commission or EEOC) started to examine the impact of AI, people analytics and “big data” on employment. “Big data” was characterized as the use of algorithms, data scraping of the internet, and other technology-based methods of evaluating huge amounts of information about individuals. The Commission acknowledged in its 2016 systemic program review, “[h]iring or nonselection remains one of the most difficult issues for workers to challenge in a private action, as an applicant is unlikely to know about the effect of hiring tests or assessments, or have the resources to challenge them.” Despite this and some reports that the agency reportedly investigated the use of an algorithm in hiring in two cases in 2019, it took little further action until 2021.

Meanwhile some high-profile examples of AI bias flagged the risk. In 2018, Amazon stopped using an algorithmic-based resume review program when its results showed that the program resulted in bias against female applicants. In 2019, the Electronic Privacy Information Center filed an FTC complaint against recruiting company HireVue arguing that its face-scanning technology constituted an unfair and deceptive trade practice. HireVue’s “AI-driven assessments” use video interviews to analyze hundreds of thousands of data points related to a person’s speaking voice, word selection and facial movements. With a lack of federal focus on the issue, in 2019 states began to generate legislation or resolutions. During 2021 at least 17 states have introduced bills or resolutions, or enacted or implemented laws related to use of AI.

Finally, on December 8, 2020, 10 U.S. Senators sent a letter to then-EEOC Chair Janet Dhillon, calling on the agency to exercise its oversight authority regarding hiring technologies. The timing of the letter reflected the Senators’ concerns that businesses reopening after pandemic closures might seek to hire quickly with the potential upswing in use by employers who “turn to technology to manage and screen large numbers of applicants to support a physically distant hiring process.”

The Senators placed responsibility for addressing the risk of bias and discrimination from the use of hiring technologies squarely with the Commission, stating, “The Commission is responsible for ensuring that hiring technologies do not act as ‘built-in headwinds’ for minority groups. Effective oversight of hiring technologies requires proactively investigating and auditing their effects on protected classes, enforcing against discriminatory hiring assessments or processes, and providing guidance for employers on designing and auditing equitable hiring processes.”

Among other questions, the Senators asked the Commission to provide information about its use of “its authority to investigate and/or enforce against discrimination related to the use of hiring technologies.” The letter asked the Commission to identify what authority it could or has used to “study and investigate the development and design, use, and impacts of hiring technologies absent an individual charge of discrimination?” Notably, the letter also queried the Commission’s intention to issue guidance, regulations, and to conduct research.

Re-enter the EEOC. On October 28, 2021, EEOC Chair Charlotte A. Burrows announced a new agency initiative focused on ensuring that the use of AI by employers at all employment stages complies with federal anti-discrimination law. A companion press release outlined the EEOC’s five initial goals for its initiative, which were notably reflective of the type of action queried by the Senators:

Establish an internal working group to coordinate the agency’s work on the initiative.
Launch a series of listening sessions with key stakeholders regarding use of algorithmic tools and their employment ramifications.
Gather information about the adoption, design, and impact of hiring and other employment-related technologies.
Identify promising practices.
Issue technical assistance to provide guidance on algorithmic fairness and the use of AI in employment decisions.

In making the announcement Burrows stated, “The bottom line here, really, is despite this aura of neutrality and objectivity around artificial intelligence and predictive tools that incorporate algorithms, they can end up reproducing human biases if we’re not careful and aware that we need to check for that.” She characterized the risk-benefit analysis that must attach to use of AI saying, “Artificial intelligence and algorithmic decision-making tools have great potential to improve our lives, including in the area of employment. At the same time, the EEOC is keenly aware that these tools may mask and perpetuate bias or create new discriminatory barriers to jobs. We must work to ensure that these new technologies do not become a high-tech pathway to discrimination.”

Burrows’ comments follow 2021 comments and articles issued by fellow EEOC Commissioner Keith Sonderling, beginning in early Spring 2021. In September, Sonderling signaled that EEOC may use Commissioner charges — agency-initiated investigations unconnected to a discrimination charge — to ensure employers are not using AI unlawfully. Sonderling explained that using Commissioner charges would assist enforcement because job applicants and employees are often unaware that they have been excluded from a certain job because of flawed or improperly designed AI software or bias. In 2021 and prior to the agency’s announcement of the AI initiative, Commission investigators participated in AI training.

The public comments by the Commissioners clearly signal that the agency has brought its focus to use of hiring and employment technologies as an area of systemic discrimination. When the agency does this, employers using AI or other technologies should exercise caution. Despite the initiative announcement characterizing the Commission as initially concentrating on information collection, education and guidance, the investigator training points to a companion focus of enforcement. Burrows signaled this, saying, “Bias in employment arising from the use of algorithms and AI falls squarely within the Commission’s priority to address systemic discrimination.” Employers subject to a Charge investigation should be alert to Commission inquiries into their use of technology.

Proactive Steps for Employers

In light of the Commission’s statements of priority, employers using hiring and employment technology systems, such as artificial intelligence or algorithmic decision-making systems, should evaluate the systems and their use to ensure there is no ensuing bias. Regular auditing should occur to ensure bias is not introduced at a later stage. Additionally, if an employer has used or is considering use of an AI technology vendor, the employer should:

Ensure the vendor understands the employer’s EEO obligations.
Ask the vendor to explain how it proactively avoids bias in its process and the results.
Consider making the avoidance of bias a material term of the vendor contract.

Moreover, employers using hiring and employment technology systems should implement policies related to such use including requiring any managers using such technology to report any biased results and to prohibit inappropriate or discriminatory use of such systems.

Finally, given the relative volume of Commission activity in this area, it is anticipated that the agency may be issuing Guidance on use of hiring and employment technologies soon. Employers are advised to keep informed.

Jill Pedigo Hall practices in the Madison, Wisconsin, office of von Briesen & Roper, s.c. She partners with businesses to develop and implement best practices, strategies, and solutions that ensure legal compliance while supporting business goals. Jill is recognized for her efficient, practical approach to litigation defense and resolving employment law disputes. She focuses on counsel and defense in the areas of discrimination, medical leaves, and affirmative action with an emphasis on workplace leadership and culture, FMLA and disability leave management, harassment and discrimination prevention.

Americans With Disabilities Act

Remote Working, Vaccines, and Employer Obligations

By Kevin J. O’Connor, Stephen Irving, and Lauren Rayner Davis

The last 18 months have brought tumultuous change for employers due to the COVID-19 pandemic. The pandemic has been a great disruptor, and has brought rules, regulations, and related agency guidance that have served to overwhelm even the most conscientious and attentive employer. The welcomed arrival of COVID-19 vaccines has, in many respects, caused many employers even more confusion on how to deal with employee requests for accommodations, such as telework.

With the rollout of vaccines nationwide and improving conditions that allowed employees to return to many workplaces and created a need for return-to-work policies, one area for employers to be aware of is the intersection of an employer’s obligations under the Americans with Disabilities Act (as Amended) (ADA) to address a request for a reasonable accommodation, and a request by an employee to telework. This alert is intended to address recent guidance and case law on this issue.

In years past, requiring full-time, in-office attendance was seen as an “essential function” of many jobs. There was often resistance to accommodations that departed from this norm, and many employers often took the position that accommodating a disability with remote work was unreasonable. With millions of workers having participated in a large, forced experiment to see if remote working would be productive on a full-time basis, many employees are of the view that remote work is at least as productive as work in-office and are resisting a return to in-person attendance by asking for accommodations to work at home.

For those employees who raise a disability as an impediment to returning to the office and seek an accommodation in the form of teleworking, an employer must be sure to engage in an interactive process to avoid potential liability. The ADA obligates an employer to make a “reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” 29 CFR § 1630.9. The Equal Employment Opportunity Commission (EEOC), which enforces the ADA, looks to whether the employer engaged with the employee in an interactive process with respect to their request for an accommodation. Engaging in the interactive process is critical to the defense of any eventual claim under the ADA.

The interactive process begins with a request. Requests may not always need to be formal or in writing, but it is advisable for employers to maintain policies and procedures regarding the manner of handling accommodation requests to ensure that employee requests are processed in a neutral and consistent manner. While failure to request a reasonable accommodation may complicate an employee’s claim that the employer failed to accommodate the disability, if an employer is put on notice or otherwise aware of a medical condition that interferes with the employee’s ability to perform the essential functions of their job, they must engage in the interactive process with that employee.

Employers are in many ways in uncharted waters at present. In the past, there have been some cases that turned on whether it was a violation of the ADA to refuse to allow teleworking, and it has been held that such an accommodation cannot be a conditioned on improved performance. See Goonan v. FRB of N.Y., 916 F. Supp. 2d 470, 484 (S.D.N.Y. 2013). As an example of a case that has arisen during the COVID-19 pandemic, the Court in Peeples v. Clinical Support Options, Inc., 487 F. Supp. 3d 56, 65 (D. Mass. 2020) granted a preliminary injunction requiring the employer to permit plaintiff to continue to telework as a reasonable accommodation for asthma during the COVID-19 pandemic where the plaintiff demonstrated that they performed the same duties on-site that they performed at home.

As with any discussion of essential job functions, when considering remote work, it is key to determine which job functions can be performed outside of the workplace and which must be performed in the workplace. This is where the lack of any written job descriptions can be an Achilles’ heel. If a marginal function needs to be performed by an in-office employee and is the only obstacle to permitting an employee to work at home, such marginal functions may be reassigned, and an employer may substitute another minor task to be performed remotely. See Work at Home/Telework as a Reasonable Accommodation, EEOC, February 3, 2003, available at https://www.eeoc.gov/laws/guidance/work-hometelework-reasonable-accommodation. While the EEOC has consistently provided for remote work as an accommodation, prior to the COVID-19 pandemic, many employers took the position that in-person interaction was an “essential function” of the job. For example, for employers who did not already offer a remote work program, the EEOC’s guidance stated that, with respect to remote work as an accommodation, “an employer is not obligated to adopt an employee’s preferred or requested accommodation and may instead offer alternative accommodations as long as they would be effective.” Id.

In the EEOC’s more recent COVID-19 guidance, however, remote work as an accommodation has been mentioned prominently. The EEOC has stated that while working remotely during the pandemic does not mean that employers must “automatically” grant remote work as a reasonable accommodation, it is relevant to the consideration of new or renewed requests for remote work. “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and

Other EEO Laws,” EEOC, June 28, 2021, available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. Further, the EEOC has stated that employers’ temporary excusal of performance of one or more essential job functions when the office is closed does not mean that the job’s essential functions have changed. Id. However, this does not provide a license for employers to reject remote work as an accommodation. A determination still needs to be made that the employee can fulfill their essential job functions working remotely. The EEOC has also stated that, in determining whether remote work is a “reasonable accommodation,” remote work during the pandemic may be looked to as a “trial period” for how remote work might work for that employee. Id.

Additionally, and significantly, in Section K.2 of that same guidance, when discussing the implementation of vaccine programs, the EEOC noted that where an employee is unable to be vaccinated due to a disability covered by the ADA, the employer should consider whether to allow that employee to telework, provided it does not constitute an undue burden on the employer.

Accordingly, employers must use caution when considering employee accommodations on this basis and are recommended to consult with qualified counsel knowledgeable in this area before rejecting any employee request to telework as an accommodation for a disability.

Kevin O’Conner is a partner on the Commercial Litigation team at Peckar & Abramson, P.C. and serves as co-chair of the firm’s Labor & Employment practice.

Stephen E. Irving is Senior Counsel in Peckar & Abramson’s Texas offices, based in Houston. He is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization.

Lauren Raynor Davis is an associate in Peckar & Abramson’s Labor & Employment practice. She is based in the firm’s New Jersey office.

Employment and Labor Law Committee

Note From the Chair

By Dessi N. Day

Home is where the heart is. It is a space where we feel seen, loved, respected, connected, and where vulnerability is not a weakness but honor.

Home is what DRI has been for so many lawyers over the past few decades. It is a space where we learn from one another, support each other, and feel a deep sense of belonging that rarely exists in a community of lawyers.

With the holiday season upon us, there is no better time to reflect on the gift of DRI and its purpose. Many have come to depend on the collaborative online community for guidance on a variety of employment and labor law issues. The generosity of our DRI tribe is inspiring. Our commitment to serving others and goals that are bigger than our individual interests has brought so much joy and satisfaction to so many who have considered DRI their “home” for decades.

Throughout the pandemic, the DRI community has managed to remain closely connected, and not only provide excellent courses in continuing legal education but expand the relationship building spaces and opportunities to serve others. We have found that collaboration is not only possible and fun within our DRI Employment and Labor Law community but also within the larger DRI family that has over 25 substantive law and affinity groups.

As 2021 draws to a close, we are looking forward to gathering again in person in Denver, Colorado for our Annual DRI Employment and Labor Law Seminar, which will be held at the Hilton Denver City Center, May 11–13, 2022. Led by Eric Kinder and Diane Krebs, our planning team has compiled an impressive lineup of speakers and topics that will help perfect your knowledge, elevate your game, and leave no room for disappointments. We are excited to be sharing the venue with the DRI Diversity and Inclusion team, which will convene their annual seminar at the same time, in the location. This will give both communities an opportunity to reconnect and to make new friends.

We are also excited to announce that our team is preparing to launch DRI’s first Labor Law Boot Camp, which will provide a Labor Law 101 learning experience for those who have been practicing employment law for decades but have not ventured into the specialty area of Labor Law. We look forward to offering this seminar to folks who wish to expand their practice area to better serve the needs of their clients.

It gets even better, because in October 2022, we will gather in Philadelphia for the DRI Annual Meeting. Philadelphia is, of course, steeped in history and rich cultural offerings, and the Annual Meeting is a wonderful time to expand beyond the immediate circle of our close-knit community and meet DRI members from other branches of this diverse organization. Please plan to join us.

To say that we are fortunate to be part of a community that feels like home is an understatement. In 2022, I encourage you to expand your DRI journey, invite others to join you, and help us grow our community and continue to create spaces that are welcoming, engaging, inspiring, and inviting for all lawyers serving businesses throughout the United States, Canada, Mexico, and beyond.

The exceptionally talented Vice Chair of the Employment Law Committee Gordon Hill, and I, are honored to continue to lead our community and look forward to seeing you at future DRI events. In the meantime, stay safe, be well, be kind, and support one another.

Dessi Day is the Chair of the DRI Employment and Labor Law Committee. She is Senior Counsel at Greene & Roberts LLC, in San Diego, California, advising clients and representing businesses throughout California in wage and hour, discrimination, retaliation, wrongful termination, and a wide variety of employment law disputes, including complex representative/class actions.