Punching In: Labor Agency’s AI Tips Are Information Overload

Monday morning musings for workplace watchers.

AI Tips Are Hit or Miss|Pregnancy Rules Face Court Coaster

Rebecca Rainey: The Biden administration is mapping out how employers can avoid one of the most pressing legal issues emerging in the workplace today: discrimination when using AI technology.

A new AI & Inclusive Hiring Framework launched by the Partnership on Employment & Accessible Technology and funded by the US Labor Department includes 10 different focus areas employers should consider to avoid disability discrimination when deploying artificial intelligence in the hiring process.

Those areas are: ensuring human oversight of the technology, including individuals with disabilities in decision making on AI, providing accommodations, and identifying legal requirements, among other practices.

While the goal of the much-welcomed guidance is to highlight the benefits and pitfalls that come with AI,management-side attorneys say it’s also an information overload.

Daniel Kadish, an associate with Morgan, Lewis & Bockius LLP, said that while the website presents a “really useful resource” for employers, there’s likely “considerable challenges with implementing it” in a workplace.

Kadish said that it would require significant resources from a company and months or years of time to meet all of the goals listed in the guidance.

He cautioned that this isn’t a “rule or regulation, and companies don’t need to check off every box.”

There are many open questions about who is responsible for violations of federal laws when using the technology as well, an issue the guidance fails to clear up, attorneys say.

The framework urges employers to vigorously review third-party tech, outlining the factors they should consider when working with vendors like whether generative AI is included, data privacy protections, among other potential areas that can lead to accessibility or discrimination issues.

Blaming discrimination on an AI tool “is really not a defense that’s going to work out for a company,” said Marissa Mastroianni, a member of Cole Schotz PC. “I think the guidance, especially this guidance,” she added, “is ‘you must do your due diligence.’”

She also noted that the website includes a disclaimer that the material doesn’t necessarily reflect the views of the DOL.

“So as far as does this create some sort of precedent, legally speaking,” she said, “I think the answer is probably no.”

Photographer: Tobias Schwarz/AFP via Getty Images

Rebecca Klar: Conflicting rulings and ongoing challenges to the EEOC’s anti-bias pregnancy rule raise uncertainty about the future of the agency’s enforcement powers.

Since the Equal Employment Opportunity Commission issued its final rules under the Pregnant Workers Fairness Act in April, its been the target of lawsuits from Republican states and Catholic organizations. Mainly, the rule has been targeted for its inclusion of abortion as a related medical condition employers need to accommodate for under the requirements.

The various challenges have yielded different results.

The most recent blow to the rules came last week when a federal judge in North Dakota enjoined the EEOC from enforcing the rules against a group of Catholic employers in a way that would require them to accommodate abortion and fertility treatments.

One day later, a three-judge panel on the Eighth Circuit heard the first appellate case about the rules’ legality.

Whitney D. Hermandorfer, an attorney with the Tennessee AG office, represented 17 states urging the court to overturn an Arkansas federal district court’s decision that the states lacked standing to bring a case seeking to block enforcement of the rules to accomodate for abortion-related care.

Part of Hermandorfer’s argument included conflicting decisions from other courts to block enforcement of the rules, like a Louisiana federal court that issued a preliminary injunction based on a challenge brought by Louisiana, Mississippi, and another group of Catholic organizations.

“States have standing to challenge new federal agency rules that directly regulate them. The rules saddle states with new requirements they must now follow as a matter of binding federal law,” Hermandorfer said.

The EEOC’s attorney, Urja Mittal of the Department of Justice, argued the states failed to show how the regulation shows imminent risk, especially since the GOP-led states are only challenging a portion of it.

The US Supreme Court’s decision in Loper Bright Enterprises v. Raimondo overturning Chevron doctrine eliminated the requirement that courts defer to reasonable agency interpretations of laws that are unclear. That could impact the Eighth Circuit’s decision; the states explicitly mentioned it in their opening brief.

While overturning Chevron is a key difference that’s happened since the decision in Arkansas federal court, the “legal landscape is constantly evolving,” said Alexandra Barnett, a partner at Alston & Bird LLP.

“Certainly there could be other factors that influence this case, even after the oral arguments,” she added.

The EEOC’s anti-bias pregnancy rule was also blocked from being enforced against employees of the state of Texas by a federal judge in Texas. The state took a different approach, hinging its argument around Congress lacking quorum when it approved the PWFA during proxy voting rules that were in place for the Covid-19 pandemic.

The EEOC filed an appeal for that ruling.

At the same time, an electrical equipment company in Texas, Brandon & Clark, is suing the agency using a similar quorum argument Texas made.

As the EEOC awaits decisions in the ongoing challenges, it’s pushing forward with enforcing the rule as it can. The EEOC announced its first suit brought on a worker’s behalf under the PWFA earlier this month, and added two more suits against employers under the PWFA last week.

We’re punching out. Daily Labor Report subscribers please check in for updates during the week, and feel free to reach out to us.