EEOC Settlements of Lawsuit Alleging Age Bias and AI Recruiting Discrimination Underscores New Focus

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By: Philip A. Toomey, Esq.

On August 9, 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced settlement of its first-ever lawsuit alleging AI discrimination in hiring. The lawsuit alleged three integrated companies providing English-language tutoring services to students in China had programed recruiting software so it would reject female applicants over the age of 55 and male applicants over the age of 60. Under the consent order, the employer is obligated to pay $365,000 to rejected job seekers. It must also adopt anti-discrimination policies, conduct anti-discrimination training, and invite rejected applicants to reapply.

According to a survey posted by the Society of Professionals in Human Resources, as of February 2022, approximately 80% of employers nationwide use some form of AI for recruiting or hiring workers. On January 10, 2023, the EEOC published a draft strategic enforcement plan. In the plan, it specified a focus on discriminatory recruitment and hiring practices, including using automated and AI systems, to target advertisement, recruitment or hiring decisions. Two weeks ago, the Chair of the EEOC reinforced focus on AI as a new civil rights frontier that could lead to unintentional hiring decisions. The EEOC is expected to continue to ramp up efforts to challenge and litigate automated tools that exclude or adversely impact protected groups.

Leech Tishman will be hosting a Fall 2023 presentation on the workplace impact of recent Supreme Court and EEOC decisions. Stay tuned for more information.

If you have any questions about the EEOC settlement and how it may affect you as an employer, please contact Philip A. Toomey, the National Chair of Leech Tishman’s Employment & Labor Practice Group. Philip can be reached at 424.738.4400 or ptoomey@leechtishman.com.

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Leech Tishman Fuscaldo & Lampl, Inc. is a national, full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in business restructuring & insolvency, construction, corporate matters, employment & labor, estates & trusts, intellectual property, litigation & alternative dispute resolution, and real estate. In addition, the firm offers a wide range of legal services to clients in the aviation & aerospace, cannabis, emerging cyber technologies, energy & natural resources, entertainment & sports, healthcare, hospitality, and life sciences industries. With offices in Los Angeles, Leech Tishman also has offices in Chicago, Philadelphia, Pittsburgh, Sarasota, Washington, D.C., and Wilmington, DE.