The Promise and The Peril: Artificial Intelligence and Employment Discrimination

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, developed, disciplined, or fired. If appropriately designed and applied, AI promises to help workers find their most rewarding jobs, match companies with their most valuable and productive employees, and advance diversity, inclusion, and accessibility in the work- place. Notwithstanding its positive impacts, however, AI poses new perils for employment discrimination, especially when designed or used improperly.

This Article examines the interaction between AI and federal employment antidiscrimination law. This Article explores the legal landscape including responses taken at the federal level, as well as state, local, and global legislation. Next, this Article examines a few legislative proposals designed to further regulate AI as well as several non-legislative proposals. In the absence of a comprehensive federal framework, this Article outlines and advances a deregulatory approach to using AI in the context of employment antidiscrimination that will maintain and spur further innovation.

Against the backdrop of the deregulatory approach, this Article concludes by discussing best practices to guide employers in using AI for employment decisions.