Southwestern HR Consulting previously reported on the Equal Employment Opportunity Commission (EEOC) draft of its 2022-2026 Strategic Plan (SP) and the draft of its Strategic Enforcement Plan (SEP) for  FY 2023-FY2027, the latter which was up for comment on the Federal Register. The comment period was posted on with a response due date of February 9, 2023. The SP works with the SEP and outlines objectives, goals, and performance measures. 

As previously reported, the SEP signified the EEOC’s intent to address technology, including addressing the use of artificial intelligence. While the final SEP has not yet been posted, the EEOC released an updated technical assistance document regarding artificial intelligence. The EEOC Chair Charlotte A. Burrows stated, “This new technical assistance document will aid employers and tech developers as they design and adopt new technologies.” Chair Burrows also encouraged organizations currently using AI to conduct their own self-analysis of their selection processes to prevent adverse impact.

An employer can do this by checking to see if use of the tool causes a selection rate for individuals in the protected group that is substantially less than the selection rate for another group.

The EEOC cited the following to example determine if the selection rate for the protected group is substantially less:

The employer has “80 White individuals and 40 Black individuals take a personality test that is scored using an algorithm as part of a job application, and 48 of the White applicants and 12 of the Black applicants advance to the next round of the selection process.

Based on these results, the selection rate for Whites is 48/80 (equivalent to 60%), and the selection rate for Blacks is 12/40 (equivalent to 30%)…”

Therefore, ”in the example above involving a personality test scored by an algorithm, the selection rate for Black applicants was 30% and the selection rate for White applicants was 60%.

The ratio of the two rates are then compared to make sure that the percentage of Black applicants to White applicants is at or higher than 4/5 or 80%.

In this example, “The ratio of the two rates is thus 30/60 (or 50%). Because 30/60 (or 50%) is lower than 4/5 (or 80%), the four-fifths rule says that the selection rate for Black applicants is substantially different than the selection rate for White applicants,” indicating a potential discriminatory process.

To make matters more complicated, the document also signified that “Courts have agreed that use of the four-fifths rule is not always appropriate, especially where it is not a reasonable substitute for a test of statistical significance. As a result, the EEOC might not consider compliance with the rule sufficient to show that a particular selection procedure is lawful under Title VII when the procedure is challenged in a charge of discrimination.

AI is a very complex offering in the world of employment. SWHRC continues to track compliance issues and will be tracking finalization of the SEP. If you would like to learn more about how we can help you with your HR compliance needs, contact us today

Magdalena Vigil-Tullar

Written by | Magdalena Vigil-Tullar


Phone: 505-270-7494 | Email:

PO Box 14274 | Albuquerque, NM 87191

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