Adam S. Forman and Nathaniel M. Glasser, Members of the Firm in the Employment, Labor & Workforce Management practice, were quoted in The National Retail Federation, in “Experts Caution Against AI Discrimination at NRF Retail Law Summit,” by J. Craig Shearman.
Following is an excerpt:
Adam S. Forman from Epstein Becker Green moderated a session on “AI, Law and Leadership: Steering Workplace Strategy Through Political Change.” He was joined by EBG’s Nathaniel Glasser, with whom he co-chairs the law firm’s AI working group…
Over the past year, President Donald Trump has signed a series of executive orders intended to move federal AI policy away from the approach taken by the Biden administration that focused on potential risks and instead prioritize deregulation and preemption of state and local AI regulations.
Under those orders, the EEOC and other federal agencies have been directed to remove diversity, equity and inclusion concepts from their AI framework, Forman said. …
Even if the EEOC has changed its approach, Forman said employers could still face lawsuits over disparate impact discrimination.
“The fact that the Commission is not going to be investigating or prosecuting disparate impact may lead some to think they need not think about it, but it’s still part of the statute,” he said. “These are still these people out there called plaintiff’s attorneys.”
Glasser agreed.
“It’s still a recognized cause of action under several federal civil rights statutes,” he said. “We would anticipate that the plaintiff’s bar will continue to pursue those theories in court.
Some lawsuits have focused on artificial intelligence that sets criteria like age cutoffs or doesn’t accommodate language and disability needs, Glasser said. One argued that using AI to rank how job applicants’ qualifications compare with job requirements amounts to acting as a consumer reporting agency as defined under the Fair Credit Reporting Act and is therefore subject to regulation.
Employers are responsible for the actions of both in-house and third-party AI tools they use, so it is important “that you’re not signing onto a product that is intentionally weeding out or selecting applicants or employees based on a protected characteristic,” Glasser said.
While most AI discrimination concerns focus on recruiting, hiring and promotion, Forman said AI could be considered an agent of a company, particularly AI chatbots. A lawsuit could argue that “communication that an individual has with a chatbot may be cited as evidence that the company knew of a certain problem,” he said.
Citing the example of an employee raising a harassment complaint via a chatbot, he said companies should make sure their policies clearly identify human contacts with whom workers can file a complaint and specifically exclude chatbots.
The orders signed by Trump seek to preempt state and local AI laws, a move Forman said could help retail companies operating in multiple states or nationally. Local artificial intelligence measures have been adopted in California, Colorado, Illinois and New York City and are being considered elsewhere. Glasser said the executive orders don’t have the authority to preempt those initiatives, but the Department of Justice is creating a task force to challenge them and the move “signals a significant push toward federal preemption.”
