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Use of Artificial Intelligence Tools Can Violate Americans with Disabilities Act

2022-05-16

EEOC and DOJ warn companies about the use of artificial intelligence and other software tools used to make employment decisions

The Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) have each released a technical assistance document about the use of artificial intelligence (AI) and other software tools used to make employment decisions as it related to disability discrimination.

The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees, prepared by the EEOC, focuses on preventing discrimination against job seekers and employees with disabilities.  The guidance uses existing policy, regulations, and the ADA to outline issues that employers should consider when using software tools in various employment processes.  When using algorithmic decision-making tools, employers should have a procedure to provide reasonable accommodations to applicants and employees with disabilities. 

EEOC warns employers that with “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.”  Additionally, employers should beware that the use of such tools leading to inquiries about disabilities or medical conditions may result in prohibited disability-related questions or medical exams.

EEOC’s technical assistance document is part of the agency’s Artificial Intelligence and Algorithmic Fairness Initiative.  To support this initiative, EEOC also released a summary document providing “Tips for Job Applicants and Employees.”

Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring, prepared by the DOJ, provides a broad, easy to understand, overview of the rights and responsibilities of using such tools.  The document addresses the various employment processes whereby these tools may be used, such as to determine the candidate’s qualifications, to score resumes, and to hold online video interviews of applicants.  As in the EEOC document, it also explains the employer’s obligations under the ADA when using algorithmic decision-making tools and when a reasonable accommodation must be provided.  It also provides information for employees on what to do if they believe that they’ve been discriminated against.

The foregoing has been prepared for the general information of clients and friends of Workplace Dynamics LLC and is not being represented as being all-inclusive or complete. It has been abridged from legislation, administrative ruling, agency directives, and other information provided by the government. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.