EEOC to Focus on Use of "Big Data" for Workplace Decisions

October 21, 2016

Last week, the Equal Employment Opportunity Commission held a hearing where a number of witnesses warned that utilizing big data techniques and analytics for recruiting, identifying, and selecting job applicants and employees may have a disparate impact on protected groups.  The Commission announced its 2017 enforcement plan will focus on how data-driven screening tools may be a barrier to hiring.  According to Marko Mrkonich at Littler Mendelson, about one-third of employers are using big data analytics to make employment decisions, and such techniques can improve diversity by finding successful minority, female or disabled individuals who might otherwise be overlooked.  However, other witnesses said using job performance reviews to identify successful current employees for promotion based on certain formulas could perpetuate past discrimination.  According to EEOC Chair Jenny Yang, "Big Data [sic] has the potential to drive innovations that reduce bias in employment decisions," but "at the same time, it is critical that these tools are designed to promote fairness and opportunity, so that reliance on these expanding sources of data does not create new barriers to opportunity."  Separately, the EEOC released its 2017 enforcement priorities that include "issues related to complex employment relationships in the 21st century workplace," and "backlash discrimination against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent."  "The lack of diversity in technology and the increasing use of data driven screening tools" were also recognized as new issues that will be examined.