EEOC's "Artificial Intelligence" Settlement - Not Really an AI Case

But a Maryland technology attorney says she has a real one against a prominent legal search firm  

It's no secret that the EEOC is ramping up its scrutiny of the use artificial intelligence in the employment context. The Agency in 2021 announced an initiative to:

examine more closely how technology is fundamentally changing the way employment decisions are made. It aims to guide applicants, employees, employers, and technology vendors in ensuring that these technologies are used fairly, consistent with federal equal employment opportunity laws.

The EEOC followed up by issuing informal guidelines on avoiding adverse impact on legally protected applicants when using screening software.

Yesterday, headlines like this one from Reuters loudly proclaimed the settlement of the "first" EEOC artificial intelligence bias lawsuit for age discrimination, brought against a Chinese-owned language tutoring company: "Tutoring firm settles US agency's first bias lawsuit involving AI software."

Sorry folks, but this is not and never was an AI case. Rather, it was an old-fashioned discrimination against older applicants, effectuated by asking them their age on the application and then rejecting candidates over a certain age, something that any US-based employer would know not to do. From the EEOC's May, 2022, Complaint:

a. Defendants’ online application solicited the birthdates of applicants.

b. Defendants intentionally discriminated against older applicants because of their age by programming the ir tutor application software to automatically reject female applicants age 55 or older and male applicants age 60 or older.  

c. On or about March 29, 2020, Charging Party applied using her real birthdate and was immediately rejected because she was over the age of 55.

 d. On or about March 30, 2020, Charging Party applied using a more recent date of birth and otherwise identical application information and was offered an interview.

Programming your application software to reject designated individuals who input their age is simply sorting existing data, which is not an artificial intelligence function. A true AI case in this context would be software that stealthily determines someone's age by finding clues in the job history, or that searches the Internet for publicly available information, and then rejects them.

Nice sting operation by the applicant, btw.

So, we are still awaiting the first finding that AI has violated the law. However, there is a private party case pending in Federal Court that alleges misuse of AI, and it involves legal search firm Major, Lindsey and Africa and its parent company Allegis Group. The case was brought by Maryland attorney Heidi Saas on behalf of herself, and states in part:

I allege Defendants are using algorithmic, machine learning, and other technical tools in the conduct of their business, and their use of such tools caused me to be unlawfully discriminated against on the basis of my age, and gender in violation of the Age Discrimination in Employment Act of 1967.

Her initial charge of discrimination with the Maryland Commission on Civil Rights contains similar allegations:

I. On 9/21/2021 1 was contacted via Linkedin by a recruiter from Respondents agency. Respondent promised tremendous salaries of up to $100,000 to $200,000 a year for JD licensed applicants. | think they are using screening tools such as data analytics/date of birth inquiries to screen-out applicants. Based on my age, I feel | was segregated from other younger applicants, in return, Respondent did not refer me to future jobs and later disappeared (ghosting). Respondent was also advertising they could assist mothers with gaps in their resume. II. When I tried to contact the Respondents recruiters, I never heard back from them. III. I believe I was discriminated because of my age (47) and sex (female) in violation of the Age Discrimination in Employment Act of 1967, as amended; and, Title VII of the Civil Rights Act of 1964, as amended.

Saas is a data privacy and technology attorney and prolific LinkedIn poster. She even posted a photo of herself at the Federal Courthouse filing the lawsuit. Like all lawsuits, these claims are allegations, and have not been established as fact. But we will be watching this one to see what develops.