The use of artificial intelligence (AI) programs to make employment-related decisions creates a risk for employers to be subject to Title VII discrimination claims. AI programs are complex machines that can potentially generate biased results against protected groups of people. Employers are becoming vastly dependent on AI programs to make decisions in hiring, promotions, terminations, and monitoring employee performance. The risk of bias in conjunction with employers’ increased dependence on AI programs is leading to greater regulations and potential liabilities. The Equal Employment Opportunity Commission (EEOC) has provided guidance that AI programs will trigger Title VII discrimination violations when protected classes are disfavored in employment selection processes.

Under EEOC guidance, AI programs that “make or inform decisions” pertaining to employment related selections will be treated as a selection procedure in Title VII discrimination claims. Regardless of an employer’s intent, selection procedures are discriminatory when individuals in a protected group are selected at a “substantially” different rate than the selection rate of individuals in a nonprotected group. If a “substantial” difference exists, the employer must establish the selection procedure to be “job related and consistent with business necessity.” Unless the charging party shows there is a “less discriminatory alternative available” for the employer to use in place of the AI program, the Title VII claim will fail. 

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