On Monday, the
Federal Trade Commission held a conference entitled Big
Data: A Tool for Inclusion or Exclusion? The conference brought together some big names in big data, including
Princeton University’s Solon Barocas, who recently won an
award from the International Association of Privacy Professionals for his
paper on the potential for big data to create a disparate impact on minorities.
While no obvious policy initiatives came out of the conference, it was clear
that regulators, including the FTC and the EEOC, are paying attention to big
data.
Carol
Miaskoff, the EEOC’s Assistant General Counsel, explicitly stated that Title
VII applies to employment decisions that result from big data analytics,
generally through a disparate
impact analysis. Recognizing big
data’s utility, Ms. Miaskoff acknowledged that big data is not inherently discriminatory.
She went on to say, however, that if the
measures or factors used to analyze it are not job-related and consistent with
a business necessity, and create a disparate impact on protected class
individuals, an employer’s personnel decisions based on such big data analytics
can violate the law.
So where does
that leave employers in this era of HR tech? There are a great many products
out there that use big data analytics to support and streamline HR
functions. Do those products only
measure job-related characteristics consistent with business necessity? Do they produce results that create a
disparate impact on protected class individuals? We’re going to spend some time over the next
few weeks and months discussing those questions. Meanwhile, as we’ve said
earlier, employers should be mindful of the impact of decisions made by
their big data and should remember that technology will not shield them from
their responsibilities under anti-discrimination law.
One final note
on the FTC conference: Ms. Miaskoff commented that the EEOC will require
employers using big data to keep records showing how they used data
analysis. She provided no specifics
about what kind of records would be required, or under what circumstances such
records might have to be kept or produced. We’re not aware of any current regulation or guidance that requires such
record-keeping for employers in general, and there is an official announcement
of proposed regulations and an opportunity for public commentary before new
EEOC regulations go into effect, so it’s hard to know what to make of Ms.
Miaskoff’s remark. For now, we will
advise our clients who are using big data analytics that they should validate their
analysis, keep good records, and be able to show their work if they face an
EEOC inquiry.
Posted by: Judy Langevin and Kate Bischoff
