Excerpted from a Hunton Andrews Kurth LLP Blog by Kevin J. White and Daniel J. Butler
It’s no secret legislators and regulatory agencies have taken note of companies’ increasing reliance on Artificial Intelligence (AI). In the employment context, vendors market AI as an efficiency tool that can streamline HR processes and guard against human bias and discrimination. But undisciplined use of AI may introduce discrimination into the workplace.
Earlier this month, the White House waded into the discussion. Dubbed the “Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People,” the White House Office of Science and Technology Policy identified five principles to “guide the design, use, and deployment of automated systems to protect the American public in the age of artificial intelligence.”
Although the blueprint has no binding legal effect, it is a bellwether document that celebrates recent efforts to regulate AI and encourages designers, regulators and customers to take a close look at the negative side effects that AI may have on the American public.
The Blueprint’s Five Principles
- (1) Safe and Effective Systems;
(2) Algorithmic Discrimination Protections;
(3) Data Privacy;
(4) Notice and Explanation; and
(5) Human Alternatives, Consideration & Fallback.
For each principle, the document outlines human protections that should guide the design and use of AI. The general theme in each section is AI should be designed with the human experience in mind, making sure that any use of AI, 1) does not endanger human life; 2) does not subject humans to discriminatory treatment; 3) protects human privacy interests; 4) embraces transparency; and 5) allows humans the opportunity to opt out of AI-driven systems.
Algorithmic Discrimination Protections
Of relevance to employers is the section on algorithmic discrimination protections. The White House recognizes AI’s potential for innovation but explains all AI systems must have “algorithmic discrimination protections built into their design, deployment, and ongoing use.” In support of these protections, the blueprint cites a real-world example of a hiring tool “that learned the features of a company’s employees (predominantly men) and rejected women applicants for spurious and discriminatory reasons.”
The White House lauds the EEOC’s recent technical assistance bulletin that explains how employment-based AI tools can discriminate against individuals with disabilities in violation of the Americans with Disabilities Act.
It highlights industry-driven best practices that have been memorialized in the Algorithmic Bias Safeguards for the Workforce, a structured questionnaire businesses can use when deciding whether to implement software designed to evaluate workers and applicants.
The blueprint outlines discrimination protection principles implemented in various laws throughout the country. For example, the White House explains AI tools should be monitored for discriminatory impacts and results of such audits “should be made public whenever possible to confirm these protections.” This is consistent with recent regulation in New York City set to take effect in 2023 that will require auditing of AI tools in the workplace.
The blueprint emphasizes the need for designers and users of AI to be mindful of discriminatory impacts on protected populations.
What Blueprint Means for Employers
Although the blueprint is not a binding document, it is symbolic of the increased focus that regulators have on the use of AI in all facets of life, including the workplace. Employers should be mindful of the principles expressed and closely monitor developments in the law.
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