OFCCP Releases Guidance on the Use of AI in Employment

By: Haley Fisk

On April 30th, 2024, the Office of Federal Contract Compliance Programs (OFCCP) announced that it has published a new landing page focused on the use of artificial intelligence by federal contractors. This landing page contains the following items:  
  • Guide on Artificial Intelligence and Equal Employment Opportunity for Federal Contractors 
  • Joint Statement on Enforcement of Civil Rights, Fair Competition, Consumer Protection, and Equal Opportunity Laws in Automated Systems 

Guide on AI and EEO for Federal Contractors 

One of the items included in this new landing page is a guide on Artificial Intelligence and Equal Employment Opportunity (EEO) for Federal Contractors. This comprehensive guide includes several sections, including Common Questions About the Use of AI and EEO. This section defines common terms, such as “AI”, “algorithm “, and “automated systems” and further explains the applicability of current EEO law to the use of artificial intelligence. Additionally, this guide contains a section on practices federal contractors should consider implementing, including notices about the use of AI, the design and implementation of AI systems, the use of vendor-created AI systems, and accessibility and disability inclusion. 

Definitions provided by OFCCP in the Common Questions section includes the following language: 

  1. What is Artificial Intelligence, or AI?

As set forth in 15 U.S.C. § 9401(3), AI is a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments. AI systems use machine- and human-based inputs to perceive real and virtual environments; abstract such perceptions into models through analysis in an automated manner; and use model inference to formulate options for information or action. 

  1. What is an algorithm?

Generally, an “algorithm” is a set of instructions that can be followed by a computer to accomplish some end. Human resources (HR) software and applications use algorithms to allow employers to process data to evaluate, rate, and make other decisions about job applicants and employees. Software or applications that include algorithmic decision-making tools are used at various stages of employment, including hiring, performance evaluation, promotion, and termination. 

  1. What are “automated systems” and AI in the employment context?

In the employment context, the term “automated systems” broadly describes software and algorithmic processes, including AI, that are used to automate workflows and help people complete tasks or make decisions. The White House Blueprint for an AI Bill of Rights includes examples of automated systems “such as workplace algorithms that inform all aspects of the terms and conditions of employment including, but not limited to, pay or promotion, hiring or termination algorithms, virtual or augmented reality workplace training programs, and electronic workplace surveillance and management systems.” For example, an automated system may help a federal contractor’s HR professional sift through hundreds or thousands of resumes, identifying applicants that meet basic requirements for a job. A federal contractor could also use AI to determine which criteria to use when making employment decisions – for instance, in the previous example, to define the parameters by which the resumes are filtered and reviewed. 

New Technologies are Subject to Current Regulations 

Similar to their obligations with other employment processes, federal contractors must ensure that their use of AI does not discriminate in decision-making processes, and that employees and applicants are treated without regard to their race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or protected veteran status. Despite the capabilities of AI to efficiently make decisions in employment selection, the potential for AI to perpetuate bias, discriminate against protected groups, and act as a barrier to equal employment opportunity exists.  

DCI will continue to assess these new resources and provide an in-depth analysis in the coming days. 

Haley Fisk, M.S.

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