The recent U.S. Supreme Court decision striking down affirmative action in undergraduate admissions, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199 (the “SFFA Decision,” summarized here) has significant implications for admissions in higher education. However, some are considering whether the High Court’s holding will have a ripple effect in other areas, such as in employment law.

As the ground shifts a bit under college campuses following the SFFA Decision, employers are considering the potential impact of the decision on their DEI initiatives and recruiting. Following the SFFA Decision, a flurry of litigation, EEOC charges, public relations campaigns, and other activities have commenced in an effort to broaden and/or influence the reach of the Supreme Court’s holding. Recent public statements made by  EEOC officials are illustrative.

Just hours after the SFFA Decision, Equal Employment Opportunity Chair Charlotte A. Barrows said in an EEOC Press Release,

“The decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina does not address employer efforts to foster diverse and inclusive workforces or to engage the talents of all qualified workers, regardless of their background. It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.”   

Around the same time, EEOC Vice Chair Jocelyn Samuels also expressed that she believed employers would still be able to run their DEI programs as long as they’re not making employment decisions based on race.

During a recent webinar, as reported in Law360, EEOC Commissioner Andrea Lucas seemed to echo the SFFA Decision, underscoring the importance of “race-neutral” policies for employers. When asked to respond to Commissioner Samuels’ comments, Commissioner Lucas observed that the Vice Chair’s position:

fails to engage with the key question facing employers today: The legal and practical risks of race- and sex-conscious DEI initiatives adopted by many, many employers in the past to achieve equity instead of equal opportunity

In any case, as employers examine their policies, procedures, and practices to ensure compliance with applicable discrimination laws, an area for review is the use of AI-powered recruiting platforms. How employers assess, configure, and implement these recruiting tools are important considerations and vary from employer to employer, industry to industry, and platform to platform. Developing a deeper understanding of these tools is critical, particularly as the SFFA Decision could wind up reshaping this area of law. 

There are several high-level issues employers should be exploring when assessing the use of these tools, such as:

  • Whether there is bias in the data used to train the system.
  • How the system works when making recruiting suggestions or decisions, and can it be explained plainly.
  • Applicant attributes considered by the algorithms, along with the weight each attribute is assigned.
  • The ability of the tool to be fine-tuned to match specific needs, and who decides what those needs are.
  • When and how the system is evaluated for bias.
  • The allocation of liability between the employer and, if applicable, the vendor supplying the tool.
  • Case studies, if any, the vendor may have involving the tool successfully reducing bias in hiring.

For several years, the EEOC has been examining employer use of AI, and the potential risks of unlawful discrimination under both the Americans with Disabilities Act and Title VII.  It remains unclear whether or to what extent the SFFA Decision will shape the agency’s developing position, particularly as it relates to AI. Regardless, for employers seeking to use AI-powered recruiting platforms to enhance workforce diversity, they should proceed cautiously. AI algorithms are not immune to bias.  To help minimize these risks, employers should meticulously review the data and algorithms used in their recruiting platforms. Regular audits and adjustments, as needed, should be conducted throughout the hiring process.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.