The Trump administration might weaken the Equal Employment Opportunity Commission's ability to guard against AI bias-related employment abuses. It removed key documents, including AI guidance for employers, and, in an unprecedented move, fired Commission Chair Charlotte Burrows, a vocal critic of AI risks in hiring and workplace decisions.
In a blog post this week, employment attorneys from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo noted the removal of documents related to AI guidance from the EEOC website. They also stated that while President Donald Trump's AI orders might shift focus away from preventing AI-driven employment bias, they do not override federal discrimination laws.
Organizations must still comply with existing workplace laws and data privacy and security laws and should not seek to introduce AI into the workplace haphazardly.
Michelle CapezzaAttorney, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo
"Organizations must still comply with existing workplace laws and data privacy and security laws and should not seek to introduce AI into the workplace haphazardly," said Michelle Capezza, an attorney at Mintz, in an email.
A sea change in priorities
Pauline Kim, a professor at Washington University School of Law in St. Louis, noted that while the EEOC has issued guidance on AI and discrimination, such documents don't change the law. "It was simply an attempt by the commission to help employers understand how existing Title VII doctrines would apply to AI and algorithmic selection tools," she explained. Title VII of the Civil Rights Act protects employees and job applicants from discrimination.
However, Kim also pointed to the Trump administration's decision to remove EEOC technical guidance from its website as part of a broader shift away from enforcing civil rights protections and scrutinizing the tech industry. That, she said, was "significant as part of a larger sea change in the priorities of the federal government." In 2023, Kim testified before the EEOC on how AI is creating a new civil rights frontier.
Burrows, one of two Democratic commissioners fired last month by Trump before her term expired, repeatedly warned about AI-based discrimination, at one point calling some AI tools "snake oil."
EEOC thunder, but no lawsuits
Despite these concerns, the EEOC has not taken major enforcement action against HR AI tools for bias. The issue, however, is coming to a head in the courts. In a brief filed in support of Derek Mobley's case against Workday, the EEOC affirmed that existing anti-discrimination laws apply to algorithmic hiring systems. Mobley, who identifies himself in the lawsuit as a job candidate who is disabled, Black and over 40, claims that Workday's algorithm repeatedly rejected him for jobs.
The EEOC underscored the stakes, stating in the court brief: "[I]f Workday's algorithmic tools in fact make hiring decisions (and on the scale Mobley suggests), it would be all the more important to ensure that Workday complies with federal anti-discrimination law."
The EEOC removed the AI-related documents from its site in response to rescissions of Biden-era executive orders on AI, including the 2023 order on Safe, Secure and Trustworthy Development and Use of Artificial Intelligence. It said it also wants to ensure the documents are consistent with Trump's executive order from January on Removing Barriers to American Leadership in Artificial Intelligence. An agency spokesperson said the EEOC is reviewing those documents.
Legal experts said that because of the Trump administration's actions, states will likely implement their own anti-AI bias regulations.
No room for comfort
Peter Cassat, a partner at CM Law, said federal deregulation doesn't reduce employer risks. "I don't think they should be any [more] comfortable," he said.
Cassat expects AI-related regulation to shift to state legislatures and attorneys general.
Peter Salib, an assistant professor of law at the University of Houston, said if the federal government is doing less, "it wouldn't be crazy to expect the states to do more."
With AI playing a growing role in hiring decisions, the legal landscape is shifting, and experts said more challenges are likely on the horizon. If federal oversight weakens, state governments and the courts might become the primary battlegrounds for regulating AI in employment.
Patrick Thibodeau is an editor at large for Informa TechTarget who covers HCM and ERP technologies. He's worked for more than two decades as an enterprise IT reporter.
