The Department of Labor (DOL) recently released an AI & Inclusive Hiring Framework, including ten focus areas employers should consider in order to remain compliant and avoid artificial intelligence (AI) hiring discrimination. According to the DOL, its framework is intended to support the inclusive use of AI in employers’ hiring technology. Below we have summarized the ten focus areas listed in the AI & Inclusive Hiring Framework and the implications the new guidance may have for employers.
- Identify Legal Requirements: Employers should first determine which employment laws and regulations apply to their use of AI hiring technology. The applicable laws may depend on various factors, such as where the business is located, where the employees are located, and how many employees an employer has. Employers should also keep an eye on emerging laws that may create new requirements regarding AI hiring technology.
- Establish Staff Roles: Employers are encouraged to establish roles, responsibilities, and training within their organizations to maximize the benefits and manage the risks of using AI hiring technology. The guidance recommends that employers establish diverse teams to implement AI hiring technology, with the hope such teams will foster an inclusive work environment. Employers should also consider which internal groups should collaborate on AI activities and leadership’s involvement in AI governance.
- Inventory Technology: The guidance recommends that employers collect information regarding the AI hiring technology they plan to use and add the information to the employer’s AI system inventory. Employers should create policies and practices governing how their organization maintains AI hiring technology. Such policies and practices should outline acceptable uses and scope for the use of AI hiring technology, based on risk, context, and capabilities.
- Work with Vendors: Employers are encouraged to develop policies and procedures for working with vendors and other third parties to ensure compliance during the procurement and implementation process. This should include identifying potential risks, including third-party software and reporting processes.
- Assess AI’s Impacts: Employers should promote a collaborative work environment that fosters a strong risk culture. The guidance recommends that employers conduct assessments on the impacts of AI hiring technology and complete these assessments jointly with internal staff, experts, independent assessors, applicants, and workers. Employers are encouraged to particularly consider the impacts on internal users, the inclusivity of the employer’s workplace, the employer’s hiring process, and the employer’s ability to comply with anti-discrimination and accessibility laws.
- Provide Accommodations: The DOL framework encourages employers to develop a process for applicants to request accommodations if they are not comfortable with the use of AI during the hiring process. Employers should ensure that staff and third parties can promptly respond to accommodation requests and ensure these requests are properly fulfilled. Keep in mind, however, that there is no existing federal or state law requiring employers to automatically accommodate job applicants in this manner (although applicants may need to be accommodated under existing ADA or state disability discrimination laws).
- Use Explainable AI: Employers should collect AI statements and supporting documentation from vendors to better understand how AI hiring technology operates. The DOL recommends that employers also develop accessible plain-language notices that describe the functions of the employer’s AI hiring technology and the technology’s intended use.
- Ensure Human Oversight: This focus area encourages employers to establish policies and procedures for human oversight. Individuals responsible for diversity, equity, inclusion, and accessibility should be assigned key oversight roles to ensure AI hiring technology is being used properly.
- Manage Incidents: The framework recognizes that problems are inevitable and encourages employers to enact policies and procedures to address incidents and appeals regarding failures of AI hiring technology. Employers should anticipate potential failures of AI hiring technology, negative impacts users may experience, how to prioritize negative impacts, and how to support external users who need to make appeals regarding the technology.
- Monitor AI Regularly: Employers should regularly monitor the performance of their AI hiring technology. The framework suggests assessing the technology’s trustworthiness and evaluating compliance with accessibility and anti-discrimination legal requirements on a regular basis. By monitoring AI hiring technology, employers will ensure that the technology is functioning in an inclusive and non-discriminatory manner.
What Does This Mean for Employers?
Although the DOL’s guidance is not mandatory or legally binding, employers that follow this framework will be in a solid position to defend against accusations of AI discrimination. The DOL advises employers that they do not need to implement all ten focus areas at once. Instead, employers may begin by considering which recommendations are most applicable to their business or are easiest to implement.
Venable’s Labor and Employment team will continue to monitor the legal implications of AI hiring technology. If your organization has any questions about this article or any other labor-related issues, please contact the authors of this article or any member of Venable’s Labor and Employment Group.