EEOC Issues Nonbinding Guidance On Permissible Employer Use Of Artificial Intelligence To Avoid Adverse Impact Liability Under Title VII

On 18 May 2023, the US Equal Employment Opportunity Commission (EEOC) issued nonbinding guidance on how existing federal anti-discrimination law may apply to employers' use of artificial intelligence (AI) when hiring, firing, or promoting employees (the EEOC AI Disparate Impact Guidance). The EEOC AI Disparate Impact Guidance aims to assist employers when using AI for such "selection procedures" to avoid disparately or adversely impacting protected groups under Title VII and incurring any related liability.¹

The EEOC AI Disparate Impact Guidance is notably limited in scope because it does not address Title VII's or other federal employment laws' separate prohibition on employers intentionally discriminating against employees based on their protected characteristics, including race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), or national origin, nor does it address validation of the selection procedure in the event adverse