intelligence vendors deployed the “four-fifths rule” in their algorithms. Statistics matter here. Finally, the EEOC posits the issue of what an employers should do when they discover that the use of an algorithmic decision-making tool would result in an adverse impact. The EEOC explains that one advantage of algorithmic decision-making tools is that the process of developing the tool may itself produce a variety of comparably effective alternative algorithms. Accordingly, employers’ failure to adopt a less discriminatory algorithm that may have been considered during the development process could give rise to liability. Employers should thus take heed to document the steps they take to utilize non-discriminatory algorithms. The use of artificial intelligence in employment decisions may be the new frontier for future EEOC investigations. While these technologies can have tremendous cost- benefits, the risk is undeniable. Inevitably, some employer using AI will be the subject of a test case in the future. Employers should monitor the results of their own use of artificial intelligence. This can be accomplished by conducting self-analyses on an ongoing basis, to determine whether employment practices are disproportionately having a negative impact on certain protected classes. As the EEOC notes, employers can proactively change the practices going forward. Given the agility of the artificial intelligence software, employers who do find the technologies’ “employment decisions” to be problematic can and should work with vendors to remedy such defects. The balance across various District Offices throughout the country confirms that the EEOC ’ s aggressiveness is in peak form, both at the national and regional level. E. Proposed Enforcement Guidance on Harassment in the Workplace On September 29, 2023, the EEOC issued a new Proposed Enforcement Guidance on Harassment in the Workplace (the “Guidance”). The Guidance provides insights into how employers can handle evolving workplace realities and developing trends with harassment claims. Notably, the Guidance addresses how digital technology and social media postings can contribute to a hostile work environment. It also addresses the U.S. Supreme Court’s 2020 landmark decision in Bostock, et al. v. Clayton County, 140 S. Ct. 1731 (2020), where Supreme Court held that discrimination based on sexual orientation or gender identity constitutes sex-based discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). The Guidance is open to public comment through November 1, 2023; if issued in final form, it will mark the first update to the EEOC’s
official harassment guidance in nearly 25 years. Workplace Harassment In The Digital Landscape
The Guidance spotlights how social media postings and other online content can contribute to hostile work environments, even if it occurs outside of the workplace and is
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© Duane Morris LLP 2024
The EEOC Litigation Review – 2024
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