by Federal contractors must document their use of artificial intelligence (AI) and other automated systems in recruiting, screening, and hiring employees during future federal audits of their employment practices. The Office of Federal Contract Compliance Programs (OFCCP) now includes this requirement in the itemized list of documents that contractors must provide within 30 calendar days of receiving a compliance review letter.
The OFCCP monitors and addresses federal contractor compliance with affirmative action and equal employment opportunity obligations. The agency’s compliance review process has long included determining through statistical analysis whether the employer’s selection procedures adversely impact a protected group. The use of automated systems, including AI, to recruit, screen, and hire employees is now explicitly part of that review.
If the agency finds that a selection procedure has an adverse impact, the contractor must show evidence of the procedure’s ‘validity’ through validity studies. The term ‘validity’ refers to the extent to which empirical evidence or data shows that the characteristic being measured by a test or other selection procedure is related to job qualifications and requirements. There are three main approaches used by employers to establish validity via empirical evidence:
- Content validation: the content of the selection procedure measures relevant aspects of the job performance that will be expected of a successful candidate for a job or other employment action;
- Criterion-related validation: the selection procedure is predictive of or significantly correlated with essential elements of job performance; and
- Construct validation: the procedure measures the degree to which candidates have identifiable characteristics determined to be important in successful job performance.
The agency has published FAQs explaining how it will analyze the contractors’ use of selection procedures, including AI tools, to determine whether they have an adverse impact. The FAQs elaborate on what the agency considers to be selection procedures. It also addresses when and whether validation studies by the producers of commercially available tests or other selection procedures will be sufficient to establish validity. https://www.dol.gov/agencies/ofccp/faqs/employee-selection-procedures.
Note that, like other federal agencies including the Equal Employment Opportunity Commission, OFCCP uses the Uniform Guidelines for Employee Selection Procedures (UGESP) to determine if an employment or hiring practice has a disparate impact. The UGESP was first published almost 50 years ago. It can be a challenging document to use and apply. There are many online resources to help employers apply the guidelines. For example, the Biddle Consulting Group offers a free online resource for human resources professionals on the UGESP, with a wealth of information on guideline application: https://www.uniformguidelines.com.
