On May 12, 2022, the United States Equal Employment Opportunity Commission (“EEOC”) issued guidance addressing how employers use of artificial intelligence (“AI”), algorithms, and software in hiring and employment practices may be at risk for violating the Americans with Disabilities Act (“ADA”). The document also provides practical tips to employers on how to comply with the ADA when utilizing these tools. We recommend employers review the EEOC Technical Assistance Document, “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees,” in its entirety which can be found here.  Some of the key points in the guidance are outlined below.

According to the EEOC’s Technical Assistance Document (the “guidance”):

“Employers may rely on different types of software that incorporate algorithmic decision-making at a number of stages of the employment process. Examples include: resume scanners that prioritize applications using certain keywords; employee monitoring software that rates employees on the basis of their keystrokes or other factors; “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements; video interviewing software that evaluates candidates based on their facial expressions and speech patterns; and testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or on a more traditional test. Each of these types of software may include AI.”

The EEOC warns that an employer’s use of AI to support employment functions can potentially cause unlawful discrimination against people with disabilities in violation of the ADA.  In its guidance, the EEOC identifies three common ways in which an employer’s use of AI and algorithmic decision-making tools may lead to discrimination in hiring and employment practices.

First, an employer may discriminate against an applicant or employee by failing to provide a “reasonable accommodation” that is necessary for a job applicant or employee to be rated fairly and accurately by the algorithm.

Second, using algorithmic decision-making tools may intentionally or unintentionally “screen out” qualified applicants on the basis of disability during the hiring process even though that individual is able to do the job with a reasonable accommodation. The guidance indicates that “screen out” occurs when a disability prevents a job applicant or employee from meeting—or lowers their performance on—a selection criterion, and the applicant or employee loses a job opportunity as a result. A disability could have this effect by, for example, reducing the accuracy of the assessment, creating special circumstances that have not been taken into account, or preventing the individual from participating in the assessment altogether.

Third, employers may discriminate against applicants by posing disability-related inquiries or seeking information that qualifies as a medical examination before giving the applicant a conditional offer of employment.

The EEOC guidance discusses each potential area of discrimination in greater detail and provides examples of how each form of discrimination under the ADA may occur in the context of hiring and employment. These examples include:

• Failure to provide a reasonable accommodation, such as extended time or an alternative version of a knowledge test, to an applicant who has limited manual dexterity as a result of a disability who takes a knowledge test that requires the use of a keyboard or trackpad;
• Use of video interviewing software that is intended to analyze an applicant’s problem-solving ability through speech pattern may screen out qualified applicants with a speech impediment;
• Use of a personality test that delves into an employee’s “optimism” may screen out an applicant with a mental illness such as Major Depressive Disorder who responds to such questions negatively;
• Use of a chatbot programmed to reject applicants who indicate they have a significant gap in employment history, where the gap is the result of a disability, which would cause the chatbot to screen out the qualified applicant because of their disability; and
• Use of an algorithmic decision-making tool that inadvertently identifies applicants with medical conditions, and what those conditions are, which would violate the ADA if the tool was implemented in this way prior to an employer giving the applicant a conditional offer of employment.

Practical Guidance for Employers
The EEOC also provided practical guidance for employers which outlines steps that employers can take to prevent discriminatory hiring and employment practices when using AI and algorithmic decision-making tools.

These include:

• Implementing training for staff to recognize and process requests for reasonable accommodation as quickly as possible and to develop alternative methods of rating applicants and employees where evaluation methods may be inaccessible or may unfairly disadvantage an individual who has requested a reasonable accommodation due to a disability;
• Instructing third-party entities such as software vendors to forward all reasonable accommodation requests to the employer or enter into agreements with such third parties requiring the entities to provide such reasonable accommodations on the employer’s behalf;
• Using algorithmic decision-making tools that have been designed to be accessible to individuals with disabilities;
• Attempting to proactively limit chances that the technology will disadvantage individuals with disabilities by informing applicants and employees that reasonable accommodations are available for those with disabilities;
• Using algorithmic decision-making tools that only measure abilities or qualifications that are truly necessary for the job; and
• Measuring necessary abilities or qualifications directly, rather than measuring characteristics or scores that are correlated with those abilities or qualifications.

Employers who are thinking about implementing or already have implemented algorithmic decision-making software for hiring and employment practices should familiarize themselves with the EEOC’s guidance, ensure they understand the tools being used, and offer reasonable accommodations to applicants as necessary to ensure compliance with the ADA. Should you have any questions regarding this recent guidance, please contact ALG.