Employers now have a wide variety of computer-based tools (AI tools) available to assist them in hiring workers, monitoring worker performance, determining pay or promotions, and establishing the terms and conditions of employment. Employers may utilize these tools to save time and effort, increase objectivity, or decrease bias. However, the use of these tools may disadvantage job applicants and employees with disabilities. When this occurs, employers may risk violating federal Equal Employment Opportunity (“EEO”) laws that protect individuals with disabilities. Due to the potential for these software tools to violate Title I of the Americans with Disabilities Act (ADA) the Equal Employment Opportunity Commission (EEOC) has issued guidance.
The guidance has been issued in the form of questions and answers, and the guidance document explains how employers’ use of software that relies on algorithmic decision-making may violate existing requirements under the ADA. The guidance also provides practical tips to employers on how to comply with the ADA, and to job applicants and employees who think that their rights may have been violated.
Next Steps for Employers
The EEOC’s guidance does not have the weight of law, but it does provide clear insight on employment practices that would be deemed to be in violation of the ADA. Employers should ensure that their use of AI is not intentionally or inadvertently creating exclusionary practices in recruiting, hiring and establishing other terms and conditions of employment.
Employers should carefully examine any AI tools they use in their internal and external recruitment, hiring and promotion processes. Specifically, employers may consider conducting a bias audit with an independent auditor to determine whether their current technology creates any disparate treatment or disparate impact against those of a particular protected class and whether it is necessary to adjust, modify or discontinue use of any applicable AI tools.
Employers must also consider any state or local laws which may place additional obligations on employers who use AI tools, such as New York City’s recently passed law, which goes into effect January 1, 2023. It is recommended that employers work with their legal counsel to develop and implement practices that mitigate the risk of discrimination.