EEOC Settles First AI Age Discrimination Lawsuit
August 17, 2023
By Anthony Kaylin, courtesy of SBAM-approved partner, ASE
iTutorGroup Inc. will pay $365,000 to a group of approximately 200 rejected job seekers age 40 and over, according to a consent decree filed in the U.S. District Court for the Eastern District of New York. The 2022 lawsuit against iTutorGroup Inc was the first by the U.S. Equal Employment Opportunity Commission (EEOC) involving a company’s use of AI to make employment decisions.
iTutorGroup Inc. is a China-based tutoring company which provides English-language tutoring to students in China. It is a unit of Ping An Insurance Group Co of China. Specifically, the EEOC had alleged that iTutorGroup in 2020 programmed online recruitment software to screen out women aged 55 or older and men who were 60 or older. The situation was found out when an applicant reapplied with a different birthdate. The company, in its application process, asked for birthdate information.
Under the consent decree, iTutor is prohibited from rejecting tutor applicants based on sex and age. It also must adopt anti-discrimination policies and conduct anti-discrimination trainings. Further, the company must invite all applicants that were purportedly rejected due to their age in March and April 2020 to reapply.
Age discrimination in China is not new and is not illegal in China. In China, getting older is scary when looking for jobs. There is a wide-spread belief in China about the curse of 35 — once a worker hits 35 years of age, job security is vanishing. The impact in China is great. Many in their 30s are thinking about housing and family, and this insecurity is leading many to wait before committing. Since the pandemic, the growing unemployment of older workers is problematic.
iTutorGroup Inc. was likely using Chinese recruitment methods when recruiting in the U.S. without thinking about U.S. laws or compliance. This case, although an easy win for the EEOC, is likely an anomaly. U.S. employers should not be asking age related questions on its applications, and dates of employment and school should be limited to confirmation of both school and work, although hiring managers could surmise age. Most discrimination today is subtle discrimination, not overt.
EEOC will be on a rampage with AI tools. It is included as part of its current Strategic Enforcement Plan. “Employers using workplace AI tools are now on notice that the EEOC’s enforcement litigation program has notched a win, which inevitably will fuel the commission’s pursuit of other test cases to establish precedents in this emerging area of risk,” said Gerald Maatman, chair of Duane Morris LLP’s workplace class action group.
In another AI conciliation settlement in March 2023, The EEOC accused DHI of violating Title VII’s prohibition on discrimination based on national origin when some of its job posters advertised positions on Dice.com that discouraged Americans from applying. The company agreed to rewrite its programming code to ensure it’s not targeting specific groups. DHI agreed to scrape for potentially discriminatory keywords such as “H1B,” “Visa” or “OPT” — or optional practical training, which is a benefit available to international students — that appear near the words “only” or “must” in job postings.
It should be noted that generally the algorithm is not causing the discrimination, but the data set is. The algorithm pulls from the data set, and if the data set has information that should not be pulled from, such as age or immigration status, the potential for liability will be high. Users of these tools should ensure they understand what is in the data set and not assume that that the data set is clean and available to use. A good example of this situation is the Amazon attempt, which never went live, that used its own database of resumes to identify candidates. It turns out that males were being selected in the test run as the best candidates. The project was scrapped before implementation.
Source: Bloomberg Law 8/10/23, Reuters 8/10/23, Law360 8/11/23
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