U.S. Department of Labor Issues Framework to Guide Employers Implementing Artificial Intelligence Technology in the Hiring Process
Kathryn Bennett, Law Clerk
On September 24, 2024, the U.S. Department of Labor (“DOL”) announced the publication of a set of guidelines intended to support the inclusive use of artificial intelligence technologies (“AI”) by employers utilizing the technology in the hiring process. The guide (“Framework”)[1] was created by the Partnership on Employment & Accessible Technology (“PEAT”), a non-governmental policy development and technical assistance program funded by the DOL’s Office of Disability Employment Policy to develop and influence policies related to disability employment. Although compliance with the Framework is optional, this initiative provides helpful practice tips and highlights risk factors to help employers avoid liability for any disparate impacts in hiring arising from AI usage.
The Formulation and Goals of the DOL Guidelines
The Framework was created by PEAT in conjunction with the National Institute of Standards and Technology (“NIST”) and applies NIST’s AI risk management practices to the employment setting. The resulting Framework is an instructional guide of practices and considerations intended to help employers deploy AI technology in the hiring process in a non-discriminatory fashion. In particular, the Framework is intended to reduce the chance that employers deploy AI in hiring practices which results in a disparate impact on disabled individuals.
The Framework consists of ten Focus Areas; each addressing a particular practice or action which reduces the risk of unintentional disability discrimination resulting from AI usage and correlates to a Key Theme (i.e., major goal) of the Framework. The ten Focus Areas are: (1) Identify Employment and Accessibility Legal Requirements; (2) Establish Roles, Responsibilities, and Training; (3) Inventory and Classify the Technology; (4) Work With Responsible AI Vendors; (5) Assess Possible Positive and Negative Impacts; (6) Provide Accommodations; (7) Use Explainable AI and Provide Notices; (8) Ensure Effective Human Oversight; (9) Manage Incidents and Appeals; and (10) Monitor Regularly.
The Key Themes reflect specific phases of the hiring process in which using AI may result in a discriminatory impact on applicants and workers, and are grouped as: (a) The Impact of Procuring AI Hiring Technology; (b) Advertising Employment Opportunities and Recruiting Inclusively; (c) Providing Reasonable Accommodations to Job Seekers; (d) Selecting Candidates and Making Employment Offers Responsibly; and, (e) Incorporating Human Assistance and Minimizing Risk. These thematic categories reflect the Framework’s overall focus on protecting employees from potentially harmful impacts of employers’ use of AI technology.
Making Use of the Framework
To accomplish inclusivity throughout the hiring process, each Focus Area states at least one “goal,” or practice; references the documentation related to the goal; then, suggests example practices to accomplish the goal. For example, under the sixth Focus Area, “Provide Accommodations,” the Framework suggests the practice of “outlining reasonable accommodation procedures,” then refers to “accessible plain-language notices offering accommodation request options” as the documentation required to accomplish the stated goal. Last, the Framework offers examples of good practices to effectuate the goal, such as ensuring that support materials, like chatbots, provide accurate information on the accommodations process.
Employers who follow Framework guidance in this manner should be well situated to comply with disability discrimination and accessibility statutes.
Employer Considerations
Because the Framework is optional, employers are not required to implement any of its practices or policies. However, employers are increasingly relying on AI technology to screen and select candidates for offers of employment. Given that the Framework was researched and developed by organizations such as the NIST and PEAT at the DOL’s direction, employers should take advantage of the instructions that the Framework provides and implement the practices relevant to their organization to remain in compliance with disability and other employment discrimination laws when implementing AI into the hiring process. Campbell Litigation, P.C. is available for consultation on matters related to these DOL guidelines and other employment law concerns.
[1] See https://www.peatworks.org/ai-inclusive-hiring-framework/ for the full copy of the Framework.