These days employers have a plethora of options when looking for Automated Employment Decision Making Tools (AEDT). While shopping around, an employer is going to stumble upon an AEDT that purport to be, “Bias Free!” What does it mean when an AEDT claims to be “Bias Free?!” The EEOC sheds some light on this topic in its Technical Guidance on the effect that AI tools have on individuals with disabilities.
“BIAS FREE” ALLUDES TO PROTECTION FROM DISPARATE IMPACT…NOT ADA LIABILITY
Let’s start from the beginning…
The EEOC explains that when a tool advertises as “bias free,” it usually means that the tool has been tested for disparate impact. In other words the tool is “bias free” because the vendor has taken steps to avoid a disparate impact on individuals.
Now, the phrase “Disparate Impact” is a legal term of art. This is when there is a facially neutral policy, that has a discriminatory impact on a group of people. This phrase relates to the legal cause of action under Title VII, NOT the ADA. So, an employer cannot rest on the fact that they have a “Bias Free” tool. This “Bias Free” tool may mitigate exposure under Title VII, but not the ADA.
WHAT IS DISPARATE IMPACT?
BURDEN SHIFTING FRAMEWORK
When bringing a cause of action under the Disparate Impact theory a burden shifting framework is employed. Please note that it is NOT the crowd favorite McDonnell Douglas Test used for discrimination. The burden shifting for Disparate Impact claims goes like this:
- EMPLOYEE/APPLICATION BURDEN:
- Employee/Applicant identifies a specific employment practice.
- Employee/Applicant demonstrates that an unlawful disparity exists because the practice results in a disparity for a specific group, e.g., placing help wanted ads exclusively in local newspapers targeting white communities.
- Employee/Applicant establishes a causal relationship between the employment practice and the disparity.
**If the employee/applicant carries this burden, then it shifts to the employer….
- EMPLOYER REBUTTAL
Employer has three avenues to rebut the employee/applicant’s burden:
- Employer can undermine the existence of a disparate impact (argue with the numbers);
- Employer can undermine the causal analysis;
- Employer can concede the disparate impact, but defend the employment practice as, “job related for the position in question and consistent with business necessity.”
**If the employer carries this burden, then the employee/applicant has one last chance to carry the case.
- EMPLOYEE/APPLICANTS LAST CHANCE
- Employee/Applicant demonstrate that other methods exist to further the legitimate business interested without the discriminatory effect.
SCOTUS WORDS FROM THE PAST RULE
The thing is, the Supreme Court established the principles of disparate impact in a case called Griggs v. Duke Power. The key takeaway from this case is that disparate impact causes of action stand even without demonstrating intent to discriminate. The principles established in this 1971 case are as pertinent today as ever before. The Court explained that, “…practices, procedures, or tests neutral in intent cannot be maintained to “freeze” the status quo of prior discriminatory employment practices.” Chief Justice Burger explained that Title VII renders polices that are, “fair in form, but discriminatory in operation,” unlawful. The Court instructed that when faced with a disparate impact matter, courts look at the, “consequences of employment practices, not simply the motivation behind them.”
Fast forward 51 years, we must apply these same principles to the AEDT tools. Just because an employer does not intend to have a disparate impact doesn’t mean that they aren’t exposed to such a claim. Put a different way, an employer can utilize a tool that is neutral on its face, but if an audit report shows a disparate impact, there is potential exposure under Title VII.
WHAT DOES THIS MEAN?
Employers should not be fooled by the “Bias Free” labels on AEDT tools. HR Pros need to understand that just because a tool claims to be “Bias Free” does not mean that it protects against liability under the ADA. In fact, the EEOC is explicit, “[t]he steps taken to avoid that kind of Title VII discrimination [disparate impact] are typically distinct from the steps needed to address the problem of disability bias.” The EEOC instructs that employers must go beyond the steps taken to redress Title VII discrimination in order to safeguard against ADA discrimination.
Even more, NYC has a bias law effective as of April 15, 2023. Compliance with this law, only protects against disparate impact - NOT the ADA. As of late, employers and vendors are extremely focused on this law, and rightfully so. However, employers must implement practices to ensure that these tools are tested and augmented to mitigate the discriminatory effect on individuals with disabilities.
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