EEOC Issues Warning Against Disability Discrimination When Using AI
The Equal Employment Opportunity Commission (EECO) and the U.S. Department of Justice (DOJ) recently released technical assistance documents that focus on the possibility of disability discrimination when employers use artificial intelligence (AI) and other software tools to make employment decisions. Business owners who utilize AI should take note of the newly released documents.
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, and may result in unlawful discrimination against people with disabilities in violation of the Americans with Disabilities Act (ADA).
The EEOC released a technical assistance document, “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees,” which is focused on preventing discrimination against job seekers and employees with disabilities. The 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. 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 our 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.
The DOJ’s guidance document, “Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring,” provides a broad overview of rights and responsibilities. The document:
- Clarifies that, when designing or choosing technical 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.
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