Artificial intelligence (“AI”) is undeniably transforming the workplace, though many implications remain unknown. Employers increasingly rely on algorithms to determine who gets interviewed, hired, promoted, rejected, or fired. Notwithstanding its positive impacts, AI poses new employment discrimination issues, especially when designed or used improperly.

As part of its initiative on AI and Algorthmic Fairness, on 10 January 2023, the Equal Employment Opportunity Commission (“EEOC”) published for public comment a draft Strategic Enforcement Plan (“SEP”) for 2023-2027. The SEP aims to focus and coordinate the agency’s work to produce “a sustained impact in advancing equal employment opportunity”. The enforcement plan is the first to address the use of automated systems for hiring and focuses on how AI and machine learning (“ML”) systems may be used to intentionally exclude or adversely impact protected groups.