Employers using artificial intelligence (AI) to evaluate job applicants and employees may run afoul of laws prohibiting discrimination against people with disabilities, the U.S. Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) recently warned. If your business is relying on that increasingly common technology, be sure it isn’t having a disparate impact on individuals with disabilities.
Why DOJ, EEOC Say They’re Paying Attention
So, why are the federal agencies getting involved? As an assistant attorney general within the DOJ stated:
We are sounding the alarm regarding the dangers tied to blind reliance on AI and other technologies that we are seeing increasingly used by employers. As technology continues to rapidly advance, so too must [the DOJ’s and the EEOC’s] enforcement efforts to ensure that people with disabilities are not marginalized and left behind in the digital world.
The Americans with Disabilities Act (ADA) seeks to remove barriers for people with disabilities in everyday activities, including employment. It’s important to remember the Act applies to all parts of employment, including how an employer selects, tests, or promotes employees.
In their guidance, the DOJ and the EEOC explained employers are increasingly using AI and other software tools to help them select new employees, monitor performance, and determine pay or promotions. Using the technology may lead to discrimination, even if it’s unintentional.
For example, the DOJ explained some hiring technologies try to predict who will be a good employee by comparing applicants to current successful staffers. Because people with disabilities have historically been excluded from many jobs and may not be a part of the employer’s current team, the approach may result in discrimination.
Employers must be particularly wary of their AI software screening out applicants with disabilities. According to the DOJ:
Employers also violate the ADA if their hiring technologies unfairly screen out a qualified individual with a disability. Employers can use qualification standards that are job-related and consistent with business necessity. But employers must provide requested reasonable accommodations that will allow applicants or employees with disabilities to meet those standards, unless doing so would be an undue hardship. When designing or choosing hiring technologies to assess whether applicants or employees have required skills, employers must evaluate whether those technologies unlawfully screen out individuals with disabilities.
For example, if an employer uses facial and voice analysis technologies to evaluate applicants, people with disabilities such as autism or speech impediments may be screened out, even if they’re qualified for the job.
Best Practices for Employers
To avoid violating the ADA, you must ensure your hiring technologies are evaluating job skills, not disabilities. As the DOJ explained, “Some hiring technologies require an applicant to take a test that includes an algorithm, such as an online interactive game or personality assessment. Under the ADA, employers must ensure that any such tests or games measure only the relevant skills and abilities of an applicant, rather than reflecting the applicant’s impaired sensory, manual, or speaking skills that the tests do not seek to measure.”
Second, be mindful of your obligation to provide reasonable accommodations to individuals with disabilities. For example, if you use an online interview program that doesn’t work with a blind applicant’s computer screen-reader program, you must provide a reasonable accommodation for the interview, such as an accessible version of the program.
The agencies provided the following as examples of best practices that employers using hiring technologies may need to implement to ensure individuals receive needed reasonable accommodations:
- Tell applicants about the type of technology being used and how they will be evaluated;
- Give enough information to applicants so they may decide whether to seek a reasonable accommodation; and
- Provide and implement clear procedures for requesting reasonable accommodations and making sure that asking for one doesn’t hurt the applicant’s chances of getting the job.
Final Thought
AI hiring tools, even if implemented for good-faith reasons such as increased efficiency or to eliminate implicit bias in hiring personnel, may result in discrimination against individuals with disabilities. Accordingly, those of you using that type of technology should review the DOJ’s and the EEOC’s guidance to ensure your practices are legally compliant.
David Richie is an attorney with Felhaber Larson in Minneapolis, Minnesota. You can reach him at drichie@felhaber.com.