EEOC, DOJ Release AI Guidance

Employment Law


To avoid running afoul of the Americans with Disabilities Act (ADA), the Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) recently released guidance to help employers using artificial intelligence (AI) for employment-related decisions.

Each agency published a technical assistance document addressing the use of AI and other software tools that help employers select new employees, monitor performance, and determine pay or promotions.

The EEOC—which launched an initiative last fall on AI in employment—offered examples of software that may incorporate algorithmic decision making at various stages of the employment process.

Resume scanners that prioritize applications using certain keywords, employee monitoring software that rates employees on the basis of their keystrokes or other factors, and “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet predefined requirements all made the list, as did 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.

In a Q-and-A format, “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees” also explained the most common ways that an employer’s use of AI could violate the ADA.

For example, an employer violates the ADA if it fails to provide a reasonable accommodation that is necessary for a job applicant or employee to be rated fairly and accurately by the algorithm, or if it relies on an algorithmic decision-making tool that intentionally or unintentionally screens out an individual with a disability, even though that individual is able to do the job with a reasonable accommodation.

An employer could also violate the ADA by adopting an algorithmic decision-making tool for use with its job applicants or employees that violates the ADA’s restrictions on disability-related inquiries and medical examinations.

The EEOC provided “promising practices” for employers to help achieve compliance with the ADA, including training staff to recognize and process requests for reasonable accommodation as quickly as possible, and to develop or obtain alternative means of rating job applicants and employees when the current process is inaccessible or otherwise disadvantages someone who has requested a reasonable accommodation because of a disability.

Employers should also use algorithmic decision-making tools that have been designed to be accessible to individuals with as many different kinds of disabilities as possible, inform all job applicants and employees that reasonable accommodations are available for those with disabilities, and ensure that the AI tools used only measure abilities or qualifications that are truly necessary for the job.

The DOJ’s document, “Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring,” reiterated that employers must consider how the use of AI tools could impact different disabilities.

“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,” the DOJ explained.Employers should examine hiring technologies before use, and regularly when in use, to assess whether they screen out individuals with disabilities who can perform the essential functions of the job with or without required reasonable accommodations.”

Testing technologies should evaluate job skills, not disabilities, the agency noted, using the example of an applicant to a school district with a vision impairment who was passed over for a staff assistant job because he performed poorly on a computer-based test that required him to see, even though he was able to do the job.

“If a test or technology eliminates someone because of disability when that person can actually do the job, an employer must instead use an accessible test that measures the applicant’s job skills, not their disability, or make other adjustments to the hiring process so that a qualified person is not eliminated because of a disability,” the DOJ wrote.

To read the EEOC’s guidance, click here.

To read the DOJ’s guidance, click here.

Why it matters: Employers should be aware that regulators are keeping a close eye on the use of AI in employment-related decisions, and should review the EEOC and DOJ guidance for assistance in staying ADA-compliant.

manatt-black

ATTORNEY ADVERTISING

pursuant to New York DR 2-101(f)

© 2022 Manatt, Phelps & Phillips, LLP.

All rights reserved