Department of Justice Obtains Settlement Based on AI-Generated Job Advertisements

 On Wednesday February 25^th, the Department of Justice’s (DOJ) Civil Rights Division announced a settlement with Elegant Enterprise-Wide Solutions, an IT professional services company, alleging that their job advertisements generated by artificial intelligence (AI) violated the Immigration and Nationality Act (INA).  

The DOJ alleges that the job advertisements generated by an AI tool included citizenship status requirements stating that applicants must have H-1B, OPT, or H-4 visas. As these are types of work authorization visas, listing them as a requirement in the job advertisement would have the effect of screening out US workers. Section 1324b of the Immigration and Nationality Act (INA) prohibits discrimination in recruiting and hiring based on citizenship status.

The terms of the settlement include payment of a civil penalty and reviewing and revising employment policies to ensure they comply with the INA. Elegant Enterprise-Wide Solutions also agreed to conduct training for all human resources employees, and anyone involved with the job posting, recruitment, or hiring processes on their obligation to comply with the INA. The settlement also requires a three-year monitoring period, during which the DOJ can make ‘reasonable inquires’ to assess the company’s compliance with the agreement. These inquires can include – but are not limited to – requiring reports detailing compliance with the settlement, conducting inspections of the company’s physical premises, and interviewing the company’s officials and employees.

This settlement highlights the need for employers to be aware of how they are using automation and AI in all aspects of their employment, screening, and selection processes. When enforcing federal anti-discrimination laws, the government will not distinguish between whether the potential violation was carried out by an employee of the company or an AI tool. While AI offers employers much in terms of efficiency and consistency, it is critical that employers review and monitor any use of AI, whether it is internally or through the use of external tools or vendor services.

The settlement also highlights an EEO enforcement priority of this Administration: anti-American bias. The Administration’s Project Firewall is a “whole of government” initiative intended to protect the rights, wages and job opportunities of American workers. The partnership includes the Department of Labor, the Equal Employment Opportunity Commission and U.S. Citizenship and Immigration Services. Together, these agencies are aligning enforcement tools, sharing data, and coordinating guidance to prevent practices such as:

• Job ads that prioritize H-1B or other visa statuses
• Screening practices that disadvantage U.S. candidates
• Disparate promotion pathways
• Harassment or retaliation tied to national origin

Employers should audit their employment practices for compliance with these issues in mind. Your audit should go beyond looking at job postings and examine hiring, recruiting and promotion practices, as well as pay practices. This case is a good reminder that your audits should include reviews of any employment materials created by AI and third-party vendors.