Employers increasingly use AI and other software tools to help them select new employees, monitor performance, and determine pay or promotions. Employers may give computer-based tests to applicants or use computer software to score applicants’ resumes. Many of these tools use algorithms or AI. These tools may result in unlawful discrimination against people with disabilities in violation of the Americans with Disabilities Act (ADA). On May 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released guidance in the form of technical assistance document about disability discrimination when employers use artificial intelligence (AI) and other software tools to make employment decisions.
The EEOC’s technical assistance document, “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees,” focuses on preventing discrimination against job seekers and employees with disabilities. Based on the ADA, regulations, and existing policy guidance, this document outlines issues that employers should consider to ensure that the use of software tools in employment does not disadvantage workers or applicants with disabilities in ways that violate the ADA.
According to the EEOC, the most common ways that an employer’s use of AI or other software tools could violate the ADA are:
- Failing to provide a reasonable accommodation that is necessary for a job applicant or employee to be rated fairly and accurately;
- Relying on a tool that intentionally or unintentionally screens out an individual with a disability, even though the individual is able to do the job with or without a reasonable accommodation; and
- Adopting a tool that violates ADA restrictions on disability-related inquiries and medical examinations.
The guidance specifies that even if the AI tool or software is designed or administered by an entity other than the employer, such as a software vendor, the employer may still be liable for any discriminatory results it produces. In addition, the EEOC cautions employers not to rely on vendor or provider claims that a particular tool is “bias-free”, even if a provider has taken steps to prevent or reduce disability bias in its tools, as each disability is unique. The EEOC further notes that measures aimed at preventing some types of disability discrimination will not necessarily prevent the tool from disadvantaging an individual with a different disability.
Next Steps for Employers
Employers are encouraged to review the guidance. The guidance highlights best practices to reduce the likelihood of disability discrimination including, but not limited to:
- Training staff to recognize and process requests for reasonable accommodations as quickly as possible;
- Allowing accommodations such as extended time or alternative versions of tests or assessments for individuals with a disability-related need;
- Ensuring that materials presented to job applicants and employees are available in alternative formats;
- Only developing and selecting tools that measure abilities and qualifications that are absolutely necessary for a particular job; and
- Providing job applicants and employees who will be assessed by an AI decision-making tool with as much information about the tool as possible, including traits or characteristics it is designed to measure, methods for measuring those traits or characteristics, and the disabilities, if any, that might potentially lower the assessment results.
Employers can continue to expect more guidance on this subject from the EEOC as AI has been a main priority for the agency, and its’ Chair, Charlotte Burrows, has said the agency “is committed to helping employers understand how to benefit from these new technologies while also complying with employment laws.”
Employers should also be aware that states and localities are starting to regulate employer use of AI tools. For example, New York City employers that use AI technology will face significant compliance obligations starting in 2023 (for more information see our prior post). Illinois already regulates video interviews, and California’s Fair Employment and Housing Council is drafting potential AI regulations. Furthermore, many other states are considering laws that prohibit the use of algorithms that discriminate in other areas such as insurance and banking.
HR Works will continue to monitor this topic and provide updated information as needed.