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Abstract: The potential uses and misuses of artificial intelligence (AI) and other emerging technologies have been the subject of much discussion within and between academia, state and federal enforcement agencies, the advocacy community, and the business/human resource community.
Many scholars prospect these technologies could produce fairer, less discriminatory workplace policies and practices. At the same time, several scholars and civil rights advocates have raised concerns that the rapidly accelerating sophistication of these technologies has heightened dangers for abuse, including concerns about increased workplace discrimination, which is often hidden and difficult to detect.
Perhaps most notably, since at least 2016, the Equal Employment Opportunity Commission (EEOC), the federal agency charged with investigating and enforcing the federal workplace anti-discrimination laws, using a range of tools (e.g. education, policy, and enforcement) at its disposal, has been at the vanguard in examining the impact of these new technologies on workplace opportunity and its enforcement mandate.
This paper will be divided into three parts. First, I will survey the EEOC’s efforts, including those in coordination with other government agencies, to address the impact of these rapidly emerging technologies on workplace opportunity using three interrelated tools: (1) fact-finding, (2) policy and guidance, and (3) enforcement.
Second, I will discuss three, sometimes intersecting, obstacles hampering the agency’s admirable efforts, regardless of the administration: (1) the unique challenges ferreting out hiring discrimination, especially in view of the doctrinal limitations of disparate impact law, (2) unique challenges enforcing the Americans with Disabilities Act; and (3) the obstacles presented by trade secrets and confidentiality in discovery.
Finally, I will conclude with some final thoughts on whether these challenges facing the agency with respect to emerging technology in the workplace call for a re-imagining of new regulatory approaches, especially those mandating self-audits, disclosure, and notice to those discriminatorily harmed by the technology.
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