Friday, September 19, 2014

Big Data: The EEOC is Paying Attention

On Monday, the Federal Trade Commission held a conference entitled Big Data: A Tool for Inclusion or ExclusionThe 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 recordkeeping 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