In early August 2023, the Equal Employment Opportunity Commission (EEOC) announced the settlement of the agency’s l first-ever lawsuit regarding the alleged discriminatory use of artificial intelligence (AI) in the hiring process in the workplace. The EEOC and iTutorGroup, Inc. (iTutorGroup) filed a Joint Notice of Settlement which resolved age discriminaton claims that the EEOC brought against the online tutoring company.
In May 2022, the EEOC sued iTutorGroup, a provider of English-language tutoring services by US-based tutors to students in China. The lawsuit alleged that iTutorGroup programmed their tutor application hiring software to automatically reject female applicants over the age of fifty-five and male applicants over the age of sixty in violation of the Age Discrimination in Employment Act.
A rejected applicant reapplied using the exact same resume but included a younger birthdate on the application. This applicant secured an interview with this revised resume/application submission. The applicant filed a complaint with the EEOC which then filed the lawsuit on behalf of more than two hundred qualified applicants aged 55 and over from the United States.
iTutorGroup denied all allegations and continues to deny all allegations of discrimination.
iTutorGroup agreed to pay $365,000 to the more than two hundred rejected applicants, with half of each payment treated as compensatory damages and the other half as backpay. Additionally, iTutorGroup must develop, adopt, and implement anti-discrimination policies and complaint procedures applicable to the screening, hiring, and supervision of tutor applicants and tutors.
The Notice of Settlement also requires iTutorGroup to provide both initial and ongoing training. The initial training will consist of four-hour training programs conducted by third parties, both of which must be approved by the EEOC, for all supervisory and management employees, as well as any employees or contractors involved in the screening, hiring, or supervising of tutors. iTutorGroup must also provide the training program on an annual basis to all supervisory and management employees, as well as any employees or contractors involved in the screening, hiring, or supervising of tutors.
Impact on Employers
The EEOC, as well as other federal and state agencies, will continue to focus on the use of AI in the workplace. The increase in the use of IA tools, especially in recruitment and hiring, requires employers to ensure that their hiring practices and procedures remain compliant with existing law. This includes the AI tools utilized by employers.
Some considerations include:
- A thorough vetting of vendors you are considering, as well as a thorough vetting of the product and AI tool itself;
- A strong oversight of the use of the AI tool;
- A regular review of all AI tools to ensure ongoing compliance with existing and new laws;
- The undertaking of an AI bias audit. New York City is the first jurisdiction to require employers using AI in the employment context to conduct AI bias audits. Conducting a bias audit, with the guidance and advice of Stall Legal, could be very beneficial to your organization, even if you are not subject to the New Your City requirement;
- The adoption and adherence to a clear workplace AI policy; and
- The implementation of ongoing training on all workplace AI tools, including updated laws and regulations.
The use of AI in the workplace continues to evolve and is an area that reaches into many areas of the law. As a result, it is important to work closely with legal counsel on all aspects of AI in the workplace.
As always, if you have any questions on this topic, please contact your Stall Legal attorney.