On September 24, 2024, the U.S. Department of Labor (“DOL”), in collaboration with the Partnership on Employment & Access Technology (“PEAT”), a non-governmental organization funded and supported by DOL, announced the publication of the “AI and Inclusive Recruiting Framework,” (“the DOL Framework”).
The DOL framework, created in response to the Biden-Harris Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, helps employers create and maintain non-discriminatory artificial intelligence (“AI”) hiring practices for job seekers with disabilities. (For more information on the Biden-Harris Executive Order, see our Workforce Bulletin.)
Establishing these procedures has become a top priority for employers as nearly 1 in 4 organizations have implemented AI tools in HR departments, according to new research from SHRM.
AI-powered recruitment and selection tools can streamline the hiring process by identifying potential candidates or screening applicants’ resumes, but employers must ensure that their AI recruitment tools do not intentionally or unintentionally perpetuate discriminatory practices or create barriers for job seekers with disabilities . Employers can rely on the DOL framework as a useful starting point when implementing AI recruiting tools. Employers that have already implemented such tools should review the DOL framework to ensure that their practices do not create unwanted liabilities.
The DOL framework extends the same themes of responsible and transparent AI use that were published by the DOL earlier this year. (For more information on the DOL Principles for AI in the Workplace, see our Workforce Bulletin.) The DOL Framework outlines objectives for employers using AI hiring tools and suggests sample activities to help monitor and implement the use of internal AI hiring tools improve to promote inclusive procedures.
Development
PEAT has consulted with disability advocates, employers, AI experts, and government and industry leaders to apply the National Institute of Standards and Technology’s already existing AI Risk Management Framework to the specific issues facing employers and job seekers face a disability. The DOL framework identifies ten focus areas, outlined below, intended to address the impact AI technologies can have on the recruitment and selection of job seekers with disabilities, while maximizing the potential benefits of these technologies.
The DOL framework
The DOL framework includes ten focus areas:
Identify legal requirements
- Be aware of existing and new federal, state, and local regulations surrounding the use of AI in hiring practices;
- Collaborate with advisors, create non-discriminatory procedures and policies that are consistent with the current legal landscape, and develop internal training procedures to ensure that employees and applicants are well informed about the appropriate use of AI in the recruitment process;
- Ensure that the AI policy adequately protects the privacy risks related to personally identifiable information and personally sensitive information by monitoring how AI technologies collect such data; And
- Ensure that AI does not negatively impact employees due to their protected characteristics.
Establish staff roles
- Define and assign roles within the organization to ensure AI recruitment tools are used with proper supervision;
- Train staff on the risks of AI recruitment technology; And
- Seek diverse opinions from organizations and individuals with disabilities concerned with fair hiring in the workplace.
Inventory and classify technology
- Train employees on how AI recruitment tools work and where human supervision may be needed; And
- Specify tasks that require employees to use AI tools or not.
Work with responsible suppliers
- Conduct due diligence on and work with third-party vendors to ensure risk mitigation measures are in place during the development of AI recruitment tools;
- Ask suppliers:
- how they tackled unlawful bias during the development of AI tools,
- whether they have developed an accessible user interface for job seekers with disabilities, and
- whether they will provide materials in alternative formats to those seeking accommodations;
Note that the importance of working with compliant vendors has come to the forefront as courts have begun to analyze whether third-party AI screening tools are agents of the employer. If such tools are considered an employer’s agent, the employer may be held liable for the seller’s actions.
Assess the consequences
- Consider whether the risk of AI recruitment tools outweighs the benefits;
- Develop methods to assess how AI affects recruitment and selection in general and protected classes in particular; And
- Consider using independent evaluators, such as consultants, to ensure programs meet regulatory requirements.
Provide accommodations
- Create a reasonable accommodation request process;
- Ensure job seekers know how to request reasonable accommodations, whether AI recruiting tools are used or not; And
- Train employees in the accommodation process, especially regarding AI tools.
Use explainable AI
- Provide accessible and easy-to-understand communications to inform job seekers:
- that the organization uses AI in the recruitment and selection process,
- how the organization implements AI recruiting tools; And
- Explain internal supervisory procedures.
Provide human supervision
- Create internal policies to define when the use of AI tools is allowed; And
- Confirm that the organization has enough trained employees to correctly interpret AI model output so they can detect and prevent bias.
Manage incidents
- Develop procedures for responding to incidents; And
- Create contingency policies that can be implemented in the event that the risk of AI hiring technology becomes too great.
Check regularly
- Routinely evaluate the benefits and risks of AI recruitment and selection tools with an advisor;
- Consider feedback and recommendations from various internal and external stakeholders, including persons with disabilities; And
- Analyze the effectiveness of the accommodations offered.
Takeaways
The DOL’s framework and ten focus areas are not legally binding and largely expand on previously issued federal guidance. Nevertheless, employers should work with advisors to consistently monitor legal developments related to AI and may consult the DOL framework when considering purchasing and/or implementing a new AI hiring tool, or when establishing oversight policies for already implemented tools, to ensure that recruitment policies remain legally compliant. and discriminatory consequences are avoided or mitigated.
*Gretel Zumwalt, Clerk – Admissions Processing in Epstein Becker Green’s New York office, contributed to this article.
