Legal Alerts

EEOC Makes Good On AI Warning In First Age Discrimination Dispute

Charlotte, N.C. (August 30, 2023) – Ageist robots! As we projected in our previous Client Alert, artificial intelligence tools used to assist in employment decisions have created legal exposure as reflected by the Equal Employment Opportunity Commission’s (EEOC) recent filing and resolution of its first-ever AI discrimination in hiring lawsuit.

The Commission alleges in EEOC v. iTutorGroup Inc., filed in the E.D.N.Y., that an online tutoring service programmed its recruitment software to automatically reject older applicants for tutoring positions, specifically women over 55 and men over 60. The alleged discrimination did not come to light until one of the rejected applicants was offered an interview after resubmitting an identical application with a more recent birth date. In categorically rejecting over 200 applicants based on their age, with the use of programmed application software, the EEOC contends that iTutorGroup has violated the Age Discrimination in Employment Act (ADEA).

Consistent with its previous warnings, the EEOC took the position in its lawsuit that an employer cannot avoid liability for AI-based discrimination simply by pointing to the fact that a separate entity designed or administered heir technology. As a result of the discriminatory impact this technology had on older workers, the EEOC sought back pay and liquidated damages for those who were denied jobs because of their age. Ultimately, as part of a consent decree filed on August 23, 2023, iTutorGroup will have to pay $365,000 to the group of rejected applicants age 40 and over. Furthermore, in an effort to ensure that the company does not continue to use selection procedures in a manner that adversely impacts protected groups, iTutorGroup is prohibited from rejecting tutor applicants based on age and must adopt anti-discrimination policies and conduct anti-discrimination trainings.

One recent study estimates that nearly 80% of employers are using artificial intelligence for recruitment and hiring. Accordingly, this is just the beginning of AI-related cases. As we continue to see the use of AI skyrocket, the potential legal exposure under the anti-discrimination laws will necessarily increase. In an effort to ensure that companies’ use of software technologies in hiring and other employment decisions is in compliance with federal civil rights laws, the EEOC has recently launched an Artificial Intelligence and Algorithmic Fairness Initiative. Thus, employers must be cognizant of the potential impacts that their use of AI can have.

The attorneys in Lewis Brisbois’ Employment Advice & Counseling Practice are available to provide counsel to employers and HR professionals regarding AI-assisted employment decisions, the EEOC’s recent guidance document, and disparate impact risk assessments. For more information on this development, contact the authors of this alert. Visit our Labor & Employment Practice page for additional alerts in this area.


Margaret Taviano, Attorney

Taylor Farrier, Attorney


Philip Hinson, Partner

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