On January 25, 2024, the Center for Democracy & Technology, the American Civil Liberties Union, Governing for Impact, the NAACP Legal Defense and Educational Fund, the National Women’s Law Center, and Upturn sent a letter to Charlotte Burrows, Chair of the Equal Employment Opportunity Commission (EEOC). This letter followed an earlier letter that several of these organizations sent to the EEOC and other federal agencies in 2021. The letter expressed the organizations’ appreciation for the EEOC’s recent efforts to highlight and confront the rising threat of technological discrimination and laid out a number of recommended steps that the EEOC should take in the coming years to further protect workers from the risks posed by automated decision systems (ADSs) and electronic surveillance and automated management (ESAM) systems.
The letter broke these recommendations down into “areas in which . . . the EEOC can make the greatest impact on these issues in the short term” and long-term priorities for the EEOC to pursue during the remainder of the period covered by the EEOC’s 2024-28 Strategic Enforcement Plan.
In the short-term, the letter recommends that the EEOC:
- Create worker-facing “Know Your Rights” fact sheets on Automated Decision-making Systems and Electronic Surveillance and Automated Management
- Expand on the EEOC’s 2022 informal ADA guidance on employers’ use of ADSs and the EEOC’s similarly themed 2023 informal guidance on Title VII by:
- Issuing formal guidance or rules providing greater detail on employers’ obligations under antidiscrimination laws when using ADSs
- Issuing guidance for employers’ obligations under antidiscrimination laws when using ESAM
- Issue guidance on vendor liability with respect to ADSs and ESAM
The long-term priorities that the letter highlights are for the EEOC to:
- Use its authority to perform technical studies to increase agency information collection, including by collaborating with other federal departments and agencies
- Pursue Commissioner charges and directed investigations to investigate discrimination related to ADSs and ESAM
- Publishing updated rules or guidance stating that federal antidiscrimination laws apply to all applicants screened or evaluated by hiring technologies and issuing formal guidance on when targeted advertisements and other algorithmic screening techniques violate such laws
- Require employers to retain records about types of reasonable accommodations provided and methods of providing them, and include disability status data in EEO-1 reporting
- Hold additional workshops and convenings on hiring technologies
- Encourage employers and vendors to include members of vulnerable groups in the development and testing of ADSs
The letter concludes by stating:
Technological change in the workplace will continue to present new challenges to workers, employers, and regulators in the coming years. By taking the steps outlined in this letter, we believe the EEOC can help ensure that those changes work to benefit workers and prevent the use of technologies that reinforce or exacerbate existing inequities in the workplace and labor market.