Follow-up with EEOC: 5 taken from Algorithm Rewrite Settlement

March 23, 2023

Click for PDF

In the year On March 20, 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit against DHI Group Inc., operator of a job search website. ” Job advertisements posted by DHI clients to believe that they are violating Title VII of the Civil Rights Act of 1964 (“Title VII”) by discouraging US-born workers from applying.[i]

5 main ways for employers

1. Rewriting code; Under the agreement, DHI agreed to rewrite the programs to “scrape” keywords such as “OPT,” “H1B” or “Visa” near the words “only” or “must” in new job postings. While the settlement requiring DI to rewrite its algorithms is less extreme than the Federal Trade Commission’s (“FTC”) order to force companies to delete models and algorithms built using data collected without consent, it could be a sign of the EEOC’s approach going forward. .[ii]
2. Customer Posts: The allegations of discrimination against the DHI stemmed from the job advertisements posted by the DED. Customers. Accordingly, the agreement requires DHI to update its instructions to customers to identify specific language (example“H-1Bs only” or “H-1Bs and OPT preferred”) should be removed from job postings.
3. Employment Agencies: In an EEOC press release, the director of the Miami District Office said the agreement “serves as a reminder that the provisions of Title VII extend to recruiting agencies.” The EEOC’s description of the website operator here as an “employment agency” is an area worth watching and one that could create future litigation.
4. Other Public Actions: While this may be the first settlement of its kind for the EEOC, the agency previously settled with iTutorGroup Inc. in May 2022.[iii] To date, this matter has made little progress beyond iTutorGroup filing a response to the amended complaint on March 9, 2023.
5. continued focus on AI; In the year The EEOC’s Strategic Enforcement Plan 2023 to 2027 (“SEP”), released in January 2023, indicated that the agency plans to focus on the use of AI tools throughout the employment life cycle and removing barriers from exclusionary job postings.[iv] In addition to the settlement agreement with DHI, the EEOC has demonstrated its continued focus in this area with recent AI-specific expert panels. On March 11, 2023, EEOC Chair Charlotte A. Burroughs, “Is AI the new workforce? Protecting civil rights at work.[v] According to the EEOC public hearing on January 31, 2023;[vi] This panel specifically did not include employers or developers or suppliers of AI tools. Indeed, during the EEOC’s public hearing, Commissioners Keith Sonderling and Andrea Lucas both emphasized their disappointment that these key perspectives were absent from the expert panels.

***

Beginning in 2023, there has been significant change in state-level laws seeking to govern automated decision-making in employment. We expect this trend to continue and are carefully monitoring developments in these accounts with the EEOC’s updated guidance or regulations. Employers who have already implemented or are considering implementing automated devices in the workplace should consider the impact of these developments to ensure upcoming legislation and enhanced regulatory scrutiny.

__________________

[i] EEOC press release, DHI Group, Inc. The EEOC reconciles its finding of national origin discrimination (March 20, 2023) https://www.eeoc.gov/newsroom/dhi-group-inc-conciliates-eeoc-national-origin-discrimination-finding.

[ii] See, e.g, FTC takes action against company formerly known as Weight Watchers for illegally collecting children’s sensitive health information, Fed. Business.com (March 4, 2022); https://www.ftc.gov/news-events/news/press-releases/2022/03/ftc-takes-action-against-company-forerly-known-weight-watchers-illegally-collecting-kids-sensitive (requiring the destruction of any models or algorithms developed using unauthorized collected data) California company settles FTC allegations it misled consumers about using facial recognition in photo storage app, Fed. Business.com (January 11, 2021); https://www.ftc.gov/news-events/news/press-releases/2021/01/california-company-settles-ftc-allegations-it-deceived-consumers-about-use-facial-recognition-photo (Requires deletion of models and algorithms built using photos and videos obtained without express consent from users).

[iii] EEOC v. iTutorGroup, Inc.No. 1:22-cv-02565 (EDNY May 5, 2022).

[iv] For more information, please see Gibson Dunn’s client alert, Keeping Up With the EEOC: 10 Key Takeaways from the Released Draft Strategic Enforcement Plan.

[v] SXSW, Is AI the new workforce? Protecting civil rights at work (March 11, 2023) https://schedule.sxsw.com/2023/events/PP130959

[vi] EEOC, January 31, 2023 Meeting – Exploring Employment Discrimination in AI and Automated Systems: A New Frontier for Civil Rights (January 31, 2023) https://www.eeoc.gov/meetings/meeting-january-31-2023-navigating-employment-discrimination-ai-and-automated-systems-new.

The following Gibson Forest attorneys assisted in the preparation of this client update: Jason Schwartz, Molly Senger, Danielle Moss, Harris Mufson, Naima Farrell and Emily Maxime Lam.

The attorneys at Gibson Dunn are available to assist you with any questions you may have regarding these developments. To learn more about these matters, please contact your frequent Gibson Dunn attorney, a member of the firm’s Labor and Employment Practice Team, or Jason Schwartz and Kathryn Smith.

Jason C. Schwartz – Co-Chair, Labor and Employment Group, Washington, DC
(+1 202-955-8242, [email protected])

Catherine VA Smith – Co-Chair, Labor and Employment Group, Los Angeles
(+1 213-229-7107, [email protected])

© 2023 Gibson, Dunn & Crutcher LLP

Attorney’s Notice: The enclosed materials are provided for general information purposes only and are not intended as legal advice. Please note, previous results do not guarantee the same result.