The Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) have warned that using artificial intelligence (AI) and other software tools to make employment decisions can lead to disability discrimination.
Employers are increasingly using 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).
The DOJ and the EEOC each released a technical assistance document about disability discrimination when employers use AI and other software tools to make employment decisions.
The DOJ guidance, Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring, provides a broad overview of rights and responsibilities in plain language, making it easily accessible to people without a legal or technical background. This document:
- Provides examples of the types of technological tools that employers are using;
- Clarifies that, when designing or choosing technological tools, employers must consider how their tools could impact different disabilities;
- Explains employers’ obligations under the ADA when using algorithmic decision-making tools, including when an employer must provide a reasonable accommodation; and
- Provides information for employees on what to do if they believe they have experienced discrimination.
The EEOC guidance, 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. The EEOC technical assistance focuses on three primary concerns under the ADA:
- Employers should have a process in place to provide reasonable accommodations when using algorithmic decision-making tools;
- 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
- 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 exams.
Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division stated, “Algorithmic tools should not stand as a barrier for people with disabilities seeking access to jobs. This guidance will help the public understand how an employer’s use of such tools may violate the Americans with Disabilities Act, so that people with disabilities know their rights and employers can take action to avoid discrimination.”
EEOC Chair Charlotte A. Burrows stated, “New technologies should not become new ways to discriminate. If employers are aware of the ways AI and other technologies can discriminate against persons with disabilities, they can take steps to prevent it. As a nation, we can come together to create workplaces where all employees are treated fairly. This new technical assistance document will help ensure that persons with disabilities are included in the employment opportunities of the future.”
Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring can be accessed at: https://beta.ada.gov/ai-guidance/.
The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees can be accessed at: https://www.eeoc.gov/laws/guidance/americans-disabilities-act-and-use-software-algorithms-and-artificial-intelligence.
Issue:
Many hiring technologies are software programs that use algorithms or AI. While these technologies may be useful tools for some employers, they may also result in unlawful discrimination against certain groups of applicants, including people with disabilities. The ADA is a federal law that seeks to remove barriers for people with disabilities in everyday activities, including employment. The ADA applies to all parts of employment, including how an employer selects, tests, or promotes employees.
Discussion Points:
- When designing or choosing hiring technologies, employers must consider how their tools could impact applicants with different disabilities. Review your policies and procedures on the use of software tools in the hiring process, for monitoring performance, and for determining rates of pay or promotions. Update your policies as needed.
- Train appropriate staff on ADA requirements. Ensure that the trainings include the acceptable use of software tools for employment purposes. Document that these trainings occurred and file each signed document in the employee’s individual education file.
- Periodically audit to ensure that no disability discrimination occurred in hiring new employees, performance monitoring, and determining pay rates or promotions.
