"Bias Free!" Automated Employment Decision Making Tools - Employers Beware

These days employers have a plethora of options when looking for Automated Employment Decision Making Tools (AEDT). So what if, while shopping around, an employer stumbles upon an AEDT that reads, “Bias Free!” What does it mean when an AEDT claims to be “Bias Free?!” The EEOC sheds some light on this topic in their Technical Guidance on the effect that AI tools have on individuals with disabilities.

FIRST: “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 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.

SECOND: 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 disparity exists.

    • 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

    Emplyer 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 underming 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 discrminatory 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 perintent 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 foward 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 utlized a tool that is netural on its face, but if an audit report shows a disparate impact, then there is exposure under Title VII.

THIRD: WHAT DOES THIS MEAN?

Employers cannot 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 disabilitity bias.” The EEOC instructs that employers must go beyond the steps taken to redress Title VII discrimination in order to safegaurd against ADA discrimination.

Even more, as we have previously posted, 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.

Susie Cirilli