Federal Agencies Issue Joint Statement on AI Bias in the Workplace

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The heads of the Equal Employment Opportunity Commission, the Federal Trade Commission, the Consumer Financial Protection Bureau, and the Justice Department’s Civil Rights Division joined together to issue a statement on their enforcement efforts against discrimination and bias in the use of automated systems or artificial intelligence (AI) in the workplace. The statement identifies the roles each agency plays, as well as the specific concerns raised by the workplace use of AI.

According to the joint statement, the EEOC enforces anti-discrimination employment laws, while the DOJ enforces constitutional provisions and federal statutes prohibiting discrimination across many areas, including employment. Although both the FTC and CFPB protect consumers from unfair business practices, they have both expanded their reach to include employees within the definition of consumer.

The statement identifies the following issues with potential discrimination in the use of AI:

  • Data and Datasets: Outcomes can be skewed by unrepresentative or imbalanced datasets, as well as datasets that incorporate historical bias or contain other types of errors. In addition, data may be correlated with protected classes.
  • Model Opacity and Access: Most people do not understand how AI works, meaning that users do not know if the system is fair.
  • Design and Use: Developers may make flawed assumptions about the users, relevant context, or the underlying practices or procedures the AI may replace.

The agencies commit to monitoring the development and use of AI “to promote responsible innovation,” as well as to protecting individuals’ rights that may be violated through new technologies.

Notably, while these agencies are focused on the possible discriminatory impact of AI in the workplace, other federal workplace agencies are also concerned about other problematic issues arising from the use of AI. As we discussed in our November 2022 E-Update, the National Labor Relations Board General Counsel has announced that she is targeting employers’ increasing use of automated technologies and electronic management systems. Employers should expect all federal workforce agencies to scrutinize their use of AI, perhaps even where an initial complaint to the agency is apparently unrelated to that issue.