Algorithmically Excluded Part IV: Confronting the uncharted waters of AI.

Current AI Trends and Tips

By Anthony May

The world of technology can be best summarized by Ferris Bueller: “Life moves pretty fast. If you don’t stop and look around once in a while, you could miss it.” True to form, since my last blog, things in the Artificial Intelligence (AI) in the employment world has moved at light speed!

In Parts I, II, and III of this series, I provided an overview of AI, its use in employment decisions, potential discriminatory impacts, and efforts taken at the local, state, federal, and international levels to combat unlawful discrimination. In this installment, I provide a brief overview of developments and some additional tips for employers and businesses to stay ahead of the curve.

I. AI Updates

A. Executive Orders

“We have a moral, ethical, and societal duty to make sure that AI is adopted and advanced in a way that protects the public from potential harm and ensures that everyone is able to enjoy its benefits.”

Vice-President Kamala Harris, October 30, 2023.

Indeed, since we last met, federal and state governments have taken significant strides to confront the uncharted waters of AI.

On the federal end, President Joe Biden issued an Executive Order in October 2023 to “advance[] a coordinated Federal Government-wide approach” to responsibly develop and implement AI in federal government. To prevent societal harms and discrimination, the Executive Order sets out eight guiding principles to promote the safe and responsible use of AI, including in federal agencies. One of those principles focuses on the use of AI to advance equity and civil rights: “From hiring to healthcare, we have seen what happens when AI use deepens discrimination and bias, rather than improving quality of life. . . . It is necessary to hold those developing and deploying AI accountable to standards that protect against unlawful discrimination and abuse, including in the justice system and the Federal Government. Only then can Americans trust AI to advance civil rights, civil liberties, equity, and justice for all.”

President Biden’s Executive Order also references throughout the National Institute of Standards and Technology’s (NIST) Artificial Intelligence Risk Framework (AI RMF 1.0), which is widely considered to be one of the most robust and compressive guidance documents on AI in government. AI RMF 1.0’s goal is to “offer a resource to the organizations designing, developing, deploying, or using AI systems to help manage the many risks of AI and promote trustworthy and responsibly development and use of AI systems.” Among other things, AI RMF 1.0 provides critical guidelines for government and businesses alike to mitigate against the potential for increased speed and scale of biases that harm protected classes. In this regard, NIST has also developed a publication that provides specific guidance to manage and mitigate AI bias. President Biden’s Executive Order calls for NIST and leaders of the Departments of Commerce, Energy, and Homeland Security to develop a companion resource for generative AI by July 26, 2023.

States are not far behind the federal government. Here in Maryland, Governor Wes Moore signed his own Executive Order on January 8, 2024, outlining Maryland’s exploratory approach to AI technologies. Governor Moore’s plans include the creation of a sub-cabinet of state agencies to create an action plan to explore the use of AI in state government. Embracing the use of modern AI technology, Governor Moore put accessibility at the forefront of implementing AI through the state’s first digital accessibility policy to “ensure that all Marylanders have equal access to digital services and content regardless of their abilities.”

Like Maryland, other states are adopting their own executive orders. Virginia, California, and Pennsylvania have all laid the groundwork for state agencies to benefit from AI while preventing harm to the rights of those the government agencies seek to assist.

B. Federal Programs & Agencies

Federal programs continue to grapple with the pros and cons of AI. As referenced in my prior blogs, the United States Equal Employment Opportunity Commission (EEOC) continues to be a leader in the AI space. As part of its ongoing Artificial Intelligence and Algorithmic Fairness Initiative, the EEOC is undergoing significant training for staff on the use of AI in employment. Meanwhile, the White House Office of Management and Budget (OMB) has also released for public comment a draft statement titled Advancing Government, Innovation, and Risk Management for Agency Use of Artificial Intelligence, which outlines the internal roles AI plays in governance and provides recommendations for promoting responsible AI use.

Federal agencies are not far behind. For example, President Biden’s Executive Order directed the Department of Justice to issue a report addressing the use of AI in the criminal justice system, including things like predictive policing, which has long been scrutinized for resulting in disproportionate over policing in BIPOC neighborhoods. Meanwhile, in conjunction with NIST, the Department of Commerce has established the U.S. Artificial Intelligence Safety Institute (USAISI) to work with both the public and private sectors to create a consortium of interested parties and develop best practices for the use of AI.

C. State Legislation

As of July 2023, one of the country’s first laws regulating the use of AI in employment is in full effect. New York City Local Law 144 requires employers using AI to conduct and make publicly available bias audits to determine whether categories of individuals are either selected or not for advancement in the hiring process. While still in the early stages, this data may be crucial for identifying systemic biases in AI that disparately impact protected classes and deny them equal employment opportunities.

Other states continue to promulgate legislation specific to the unintended consequences of AI. In Washington, legislators have put forth HB 1951, designed to promote ethical artificial intelligence and protect against discrimination. In Hawaii, HB 1607 was proposed as an omnibus bill to provide equality for “important life opportunities,” including offers of credit, insurance, education, employment, and housing. Last year, in Washington, D.C., elected officials resurrected prior efforts to adopt a law similar to that proposed in Hawaii that, among other things, would require covered businesses to create and retain a five-year audit trail that records algorithmic determinations. This trend is likely to increase as we see more and more litigation surrounding AI in all facets of our lives.

D. Case Updates

In September 2023, the EEOC settled and entered into a consent decree with iTutorGroup, Inc., which used a recruitment program that automatically rejected individuals in higher age groups who applied for online positions to tutor individuals overseas. iTutorGroup was required to pay $365,000 to applicants who were automatically rejected based on their age. Moreover, the consent decree requires iTutorGroup to provide training for hiring staff, develop a more robust anti-discrimination policy, and monitor its programs to allow the EEOC to ensure compliance.

On January 19, 2024, a federal judge dismissed a federal claim for racial and age discrimination against Workday, Inc. In his suit, the plaintiff alleged that Workday—a third party vendor that provides screening tolls to various companies—discriminated against him after he applied for 80 to 100 jobs but failed to receive a single offer. The court dismissed the plaintiff’s suit on the grounds that the plaintiff failed to allege facts that established Workday was acting as an “employment agency” as defined under federal anti-discrimination statutes but allowed the plaintiff an opportunity to refile his complaint to provide additional facts to support his claims.

II. Trending Tips

As AI continues to evolve, so must the businesses using it. I’ve previously provided a few pointers for individuals to consider when exercising their rights. On the other side of the coin, businesses and employers should be vigilant about their use of AI and how to avoid the pitfalls of irresponsible AI use. For example:

  • The EEOC recommends that employers train HR employees to recognize and process reasonable accommodations when using AI and have alternatives in place to evaluate job applicants and employees, including ensuring that third-parties administering AI decision-making tools promptly notify the prospective employer of such requests.
  • Thoroughly vet vendors to decipher potential flaws or opportunities for bias in the systems. This would include assessing technology through “red-teaming,” e., having staff dedicated to attacking the system itself to identify safety and security concerns as well as testing for bias.
  • Appointing a Chief AI Officer to your company to oversee the businesses use of AI, including vetting vendors, auditing tools on a continuous basis, and evaluating data to ensure that the tools are not being used in a discriminatory manner.
  • Monitor trends in federal and state laws to keep abreast of changes and ensure compliance. For example, businesses that contract with the federal government should be aware of recent requirements that government contractors disclose to the Office of Federal Contract Compliance Program their use of recruitment and hiring technology, including AI tools.

The world has only begun to scratch the surface of AI and its rapidly evolving impact on our lives. As businesses, governments, and the law continue to evaluate and reevaluate the benefits and drawbacks of AI, constant vigilance will continue to be a critical piece to promote responsible AI use.

I will be presenting more on this topic at the California State University, Northridge Assistive Technology conference and the National Federation of the Blind Jacobus tenBroek Disability Law Symposium in March 2024, as well as the Society for Human Resource Management (SHRM) Talent Conference & Expo in April 2024. If you have questions about this matter or feel like you’ve been subject to discrimination in the hiring process, please contact us today for a consultation.

Authored by

Anthony May Partner