Employers increasingly have been using AI and other software tools to assist in, among other things, the hiring and onboarding process. The EEOC and DOJ have made clear that because many of these tools use algorithms or AI, they may result in unlawful discrimination against people with disabilities in violation of the Americans with Disabilities Act (ADA).
The guidance that the EEOC issued, entitled “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees,” identifies a wide variety of computer-based tools available to assist employers in hiring workers, monitoring worker performance, determining pay or promotions, and establishing the terms and conditions of employment. While employers often use these tools to save time and effort, increase objectivity, or decrease bias, the EEOC cautions that these tools may disadvantage job applicants and employees with disabilities. Thus, employers may risk violating the ADA when using these tools.
The EEOC’s guidance focuses on three specific concerns under the ADA: (1) employers should have a process in place to provide reasonable accommodations when using algorithmic decision-making tools; (2) without proper safeguards, workers with disabilities may be “screened out” from consideration in a job or promotion, even if they can do the job with or without a reasonable accommodation; and (3) if the use of AI or algorithms results in applicants or employees having to provide information about disabilities or medical conditions, it may result in prohibited disability-related inquiries or medical examinations.
To comply with the ADA when using algorithmic decision-making tools, the EEOC alerts employers to their obligation to provide reasonable accommodations when legally required. Employers can meet this requirement by training staff to recognize and process requests for reasonable accommodations as quickly as possible; develop or obtain alternative means of rating job applicants and employees when the current evaluation process is inaccessible or otherwise unfairly disadvantages someone who has requested a reasonable accommodation because of a disability; and ensure that when an algorithmic decision-making tool is administered by an entity with authority to act on the employer’s behalf, such as a testing company, the entity promptly forwards all requests for accommodation to the employer to be processed in accordance with ADA requirements.
Employers also should minimize as much as possible the chances that algorithmic decision-making tools will disadvantage those with disabilities. To do this, employers can: (1) provide clear and accessible instructions for requesting accommodations; (2) describe, in plain language and in accessible formats, the traits that the algorithm is designed to assess, the method by which those traits are assessed, and the variables or factors that may affect the rating; and (3) ensure that the algorithmic decision-making tools only measure abilities or qualifications truly necessary for the job.
The EEOC further instructs that, prior to implementing algorithmic decision-making tools, employers should ask the vendor to confirm that the tool does not ask job applicants or employees any questions that are likely to elicit information about a disability or seek information about an individual’s physical or mental impairments, unless such inquiries are related to a request for reasonable accommodations.