DOL Joins Other Agencies in Call for Fair and Equal Artificial Intelligence Usage

On April 4, the Department of Labor (DOL) joined other federal departments and agencies by releasing artificial intelligence (AI) guidance. Specifically, the DOL’s release calls for “fairness, equality, justice[,] and compliance as automated systems [like AI] become more commonly used.” Generally, the DOL also emphasizes that existing laws apply to using automated systems as they currently do to other practices. Earlier, in September 2023, the Equal Employment Opportunity Commission (EEOC) announced that it had reached a final settlement in an AI discrimination hiring lawsuit.

Previous Federal Agency Guidance on Artificial Intelligence

Previously, in May 2023, the EEOC released a joint statement with other agencies on AI and automated systems. Joining the EEOC on the statement were the Department of Justice (DOJ), the Consumer Financial Protection Bureau (CFPB), and the Federal Trade Commission (FTC). The joint statement discussed how the agencies will address the proliferation of AI and automated systems regarding “fairness, equality, and justice.” As shown above, the DOL is taking a similar approach to artificial intelligence compliance. Explicitly, the EEOC, the DOJ, the CFPB, and the FTC all agreed that while AI and automated systems offer new opportunities and convenience to employers, they carry the risk of potentially discriminating against several protected classes. Each agency promised to exercise its authority to monitor the development and use of AI tools in employment.

The Department of Labor’s Guidance on Artificial Intelligence

Comparatively, the April 2024 guidance was released by the DOL’s Office of Federal Contract Compliance Programs (OFCCP) and its Civil Rights Center (CRC). Both offices underscored the importance of employers’ and other users’ responsibilities. These responsibilities include ensuring that the development and use of AI technologies are consistent with federal law. By comparison, the OFCCP holds contractors and subcontractors that do business with the federal government responsible for specific actions. These actions include complying with the legal requirement to follow affirmative action and not discriminate based on the following:

• race,
• color,
• sex,
• sexual orientation,
• gender identity,
• religion,
• national origin,
• disability, or
• status as a protected veteran.

The CRC’s enforcement authority applies to recipients of financial assistance under the Workforce Innovation and Opportunity Act. Specifically, the CRC protects individuals from discrimination based on:

• race,
• color,
• religion,
• sex,
• national origin (including limited English proficiency).
• age,
• disability,
• political affiliation or belief, and
• citizenship status.

Employer Takeaways

In conclusion, the DOL’s recent guidance mainly targets how the OFCCP and the CRC will handle artificial intelligence compliance in the workplace. For instance, the guidance includes examples of the OFCCP’s efforts to ensure equal employment opportunities. It also consists of an FAQ on the Validation of Employee Selection Procedures. Even though some employers do not fall under the jurisdiction of the OFCCP or the CRC, this recent release is a reminder of past 2023 EEOC guidance. That guidance included information on how all covered employers could legally use AI in hiring decisions.