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On September 24, the U.S. Department of Labor (DOL) announced the publication of new AI hiring and recruitment requirements. Specifically called “AI & Inclusive Hiring Framework,” this new tool was designed to support the inclusive use of artificial intelligence (AI) in employers’ hiring technology. Additionally, the DOL believes the new resource will increase benefits for disabled job seekers. It is important to note that employers must not discriminate against federally protected classes, which include race, sex, age, disability, and pregnancy status. This includes whether or not the employer utilizes AI hiring and recruitment. Comparatively, the EEOC has ramped up its enforcement efforts in recent years. Previously, in April 2024, the DOL joined other federal departments and agencies by releasing AI guidance. Chiefly, the DOL’s release called for “fairness, equality, justice[,] and compliance as automated systems [like AI] become more commonly used.”
Overview of “AI & Inclusive Hiring Framework&rdquo
Published by the Partnership on Employment & Accessible Technology (PEAT), the DOL believes that the framework will help employers in a number of ways. Particularly, the agenda believes the guidance will reduce the risks of creating unintentional forms of discrimination as employers implement AI hiring and recruitment. Additionally, the DOL hopes to lessen barriers to accessibility as businesses implement AI hiring technology. Funded by the department’s Office of Disability Employment Policy (ODEP), the initiative will also help workers and job seekers navigate the potential benefits and challenges they may face when encountering AI-enabled technologies.
Chiefly, PEAT’s framework is based on the National Institute of Standards and Technology’s (NIST's) AI Risk Management Framework. It includes NIST’s best practices for inclusive hiring. Basically, ODEP and PEAT developed the framework with input from:
- disability advocates,
- AI experts,
- government and industry leaders, and
- the public at large.
The framework has ten focus areas, including practices, goals, and sample activities. Employers can certainly adopt these goals into their AI governance and disability-inclusive hiring initiatives. Each area has information on maximizing benefits and managing risks for workers and job seekers. As has been noted, this should occur when an organization assesses, acquires, or deploys AI hiring and recruitment technology.
Title VII of the Civil Rights Act of 1964
Aside from AI-related hiring discrimination, employers must still avoid other forms of similar discrimination. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information. The law makes it clear that it is unlawful for an employer to:
- fail or refuse to hire an applicant,
- discharge any employee, or
- otherwise discriminate against any individual with respect to their compensation, terms, conditions, or privileges of employment because of the individual’s race, color, religion, sex, or national origin.
In addition, the law requires employers to reasonably try to prevent and correct the behavior. Finally, Title VII protects employees who object to discrimination from retaliation or any adverse employment action against an employee exercising their rights.
Employer Takeaways
In conclusion, as shown earlier, state, federal, and local laws prohibit hiring discrimination against job candidates based on protected characteristics. These protected characteristics include sex, gender, age, race, religion, national origin, sexual orientation, gender identity, pregnancy, disability, military status, and/or marital status. Any illegal interview question that elicits information about a protected characteristic under anti-discrimination laws may be used as evidence of an unlawful preference or bias. Additionally, employers must provide specific forms and notices to new hires under state & federal laws and maintain certain records created during the hiring process. These may include tax & employment eligibility forms, written disclosures about harassment, workers’ compensation, paydays, and paid leave benefits.
For this reason, WorkWise Compliance created the Hiring and Onboarding Digital Compliance Bundle. This collection of digital resources helps employers ensure that their hiring and onboarding process complies with state and federal anti-discrimination laws, notification requirements, and documentation requirements.
The digital resource bundle includes Interviewing & Hiring Laws Training for Employers and Managers. This online, interactive training module trains business owners and managers on the difference between legal and illegal interview questions. Supplemental materials, including a downloadable collection of pre-written interview questions, are also included with the module. (Customers may also purchase this training module separately.)
Employers should prioritize anti-retaliation training for managers to ensure that all actions related to hiring and recruitment, including those involving AI tools, comply with anti-discrimination laws. Managers should be well-versed in understanding how retaliation can manifest in the workplace, especially in the context of employees or applicants exercising their rights. This training should emphasize the importance of creating a fair and inclusive recruitment process, while maintaining a workplace free of discriminatory practices. By providing managers with the proper training, organizations can mitigate risks associated with AI recruitment tools and avoid potential legal challenges related to retaliation.
