Navigating the complex intersection of employment practices, technology, and the evolving legal landscape has become increasingly vital for those specializing in immigration compliance and related discrimination law. This intersection is shaped by key players such as the Department of Justice's Immigrant and Employee Rights (IER) Section and the Equal Employment Opportunity Commission (EEOC). Recent developments, including the EEOC's latest report, High Tech, Low Inclusion: Diversity in the High Tech Workforce and Sector 2014-2022, highlight the persistent challenges employers in high-tech industries face in promoting fair and equitable hiring practices.
My Seyfarth partners, Christopher Kelleher, Andrew Scroggins, and Christopher DeGroff recently detailed this in their blog post,EEOC Puts High Tech Employers on High Alert Regarding Discrimination. The EEOC's report and analyses suggest there is a persistent underrepresentation of women, Black, Hispanic, and older workers in high-tech jobs. This underrepresentation, which the EEOC attributes to "discriminatory barriers," supports the agency's intent to intensify enforcement efforts aimed at addressing systemic discrimination in this sector.
Adding to these challenges is the increasing reliance on artificial intelligence (AI) in recruitment and hiring processes. While AI can streamline decision-making, the EEOC has warned that poorly designed algorithms can perpetuate existing biases, leading to discrimination against historically underrepresented groups. Employers in the high-tech industry, who are often early adopters of AI in hiring, must ensure that these tools are carefully vetted for fairness and compliance with both anti-discrimination laws and immigration-related employment laws.
Both the EEOC and the IER are increasing their scrutiny of AI-driven hiring practices, given the concern that these technologies may inadvertently discriminate against workers based on race, gender, national origin, and age as well as other protected categories. For employers, it is not enough to adopt cutting-edge technologies without first assessing their potential legal risks. Given the heightened focus of both agencies on ensuring compliance, it's imperative for companies to regularly evaluate and update their hiring practices—including AI tools—to ensure that they promote diversity and avoid discriminatory outcomes.
In fact, my partners Rachel See and Annette Tyman recently discussed the Mobley v. Workday case, in a legal update here where the EEOC filed an amicus brief that raised claims against a third-party vendor. The court ruled that while Workday is not liable as an "employment agency," it may still face direct liability as an "agent" of employers using its AI hiring tools. The ruling allows claims of AI-driven discrimination based on race, age, and disability to proceed, with the EEOC supporting the theory of liability against a third-party vendor. This decision could expand liability for AI vendors under federal anti-discrimination laws. Employers using AI in hiring should review their processes to ensure compliance, as the case moves forward to discovery.
Additionally, IER has shown great interest in how AI-driven and automated systems are used in Form I-9 and onboarding processes, reflecting the broader regulatory focus on ensuring these technologies do not lead to discriminatory practices. Employers using AI in hiring should review their systems and ensure adequate regulatory diligence was performed. A statement from a vendor is simply not enough to confirm compliance.
As the EEOC's recent report shows, the high-tech sector is at the forefront of these challenges, but the lessons extend to all industries. Employers need to stay ahead of these issues by implementing proactive diversity, equity, and inclusion (DEI) measures, ensuring AI tools are free from bias, and fostering an inclusive workplace culture that aligns with both the EEOC's enforcement priorities and the IER's mandate to protect immigrant and employee rights.
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