OFCCP Provides First-Ever Guidance for Federal Contractors Using AI

At the direction of the Biden administration, last week the Office of Federal Contract Compliance Programs (OFCCP) released its first-ever guidance regarding “nondiscrimination in hiring involving AI and other technology-based hiring systems.”  This guidance comes shortly after the OFCCP joined several other federal agencies in releasing a joint statement expressing a commitment to protecting the public from unlawful discrimination in automated systems.

The new guidance cautions that “the use of AI systems also has the potential to perpetuate unlawful bias and automate unlawful discrimination,” and includes a Q&A regarding common questions about AI and equal employment opportunity (EEO).

The guidance also includes a list of 33 “Promising Practices” that, while not required, the agency believes could help avoid the potentially harmful impacts of AI in contractors’ employment decisions.

A (partial) summary of OFCCP’s “Promising Practices” relating to AI and EEO includes:

• Provide advance notice to applicants and employees if AI is used in the hiring process or other employment decisions so that individuals understand how they are being evaluated.
• When making employment decisions that involve AI, be transparent about the basis of the decision and how AI contributed to it.
• Never rely on AI or automated systems to make employment decisions—always ensure there is meaningful human oversight of any decision.
• Engage with employees in the design use of any AI systems for decisions that impact them (or applicants).
• Before implementation and on a regular basis thereafter, analyze whether the use of the AI system is causing a disparate impact, and if such an impact exists, take steps to reduce it or use a different tool.
• Before signing a contract with an AI vendor, verify that the contract requires the vendor to maintain records consistent with all OFCCP obligations and provide OFCCP with access to such records during a compliance evaluation.
• Verify that the AI system is tailored to the relevant jobs and functions for which it is being used.

We will continue to track additional developments.  If you have any questions, please don’t hesitate to reach out to the authors for assistance.