Does your workplace rely on Artificial Intelligence (“AI”) to hire employees, monitor employee performance, or determine pay or promotions? Chances are it does, even if your employees do not realize it. AI has been touted to save time and increase objectivity since some level of subjective decision-making and natural bias can be avoided when using computer generated algorithms. However, use of AI may disadvantage applicants and employees with disabilities leading to violations of anti-discrimination laws.

In early May, the EEOC and USDOJ issued guidance which can be of assistance to employers in avoiding claims of discrimination. The EEOC guidance entitled The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees explains the relevance in each of these tools to the workplace. Software may include “application software” or “apps” which screen resumes, monitor employees, manage workflow, or automate hiring. The guidance defines an algorithm as “a set of instructions that can be followed by a computer to accomplish some end.” Human resources software and applications use algorithms to allow employers to process data to evaluate, rate, and make other decisions about job applicants and employees. Software or applications that include algorithmic decision-making tools may be used at various stages of employment, including hiring, performance evaluation, promotion, and termination. Employers and software vendors use AI to create algorithms which then allow companies to rely on the data analyzed by the computer to make workplace decisions.

The guidance is in a straight-forward questions and answer format and begins with a discussion of how an employer may run afoul of anti-discrimination laws when using these tools. It cites the most common ways as

  1. Failing to provide a reasonable accommodation necessary for an applicant or employee to be rated fairly and accurately by the algorithm.
  2. Relying upon an algorithmic decision-making tool which intentionally or unintentionally screens out an individual with a disability.
  3. Using an algorithmic decision-making tool which violates the ADA’s restrictions on disability-related inquiries and medical examinations.

Employers may avoid ADA violations by offering reasonable accommodations to employees up front prior to use of screening or other software. A notification to applicants or employees that such a tool will be used and that accommodations will be made available if needed may be sufficient.

If, for example, an applicant or employee does not have sufficient dexterity to use an application or would require additional time to complete an assessment to be evaluated accurately, the employer must provide the appropriate accommodation.

One example of a way an algorithmic decision-making tool could screen out individuals with disabilities is a chatbot which rejects applicants with significant gaps in employment regardless of whether the gaps are due to disability.  In addition, video interviewing software which analyzes applicant speech patterns and rejects individuals with speech impediments which may have no impact on job qualification could run afoul of the ADA.

“Gamified” tests may also create problems for employers. These tests use video games to measure abilities, personality traits, and other qualities. An otherwise qualified employee with a disability may be screened out or scored lower if their disability (vision, dexterity, hearing) makes it more difficult for them to “play” the game and score well.

When assessing whether the tool being used creates a risk of unintentional discrimination, businesses should review the accessibility of the tool to those with disabilities, even with the use of independent experts who may be best qualified to spot problematic qualities. It is also critical that employers make applicants and employees aware of the ability to seek an alternative screening mechanism or an accommodation.

Employers are also cautioned to make certain that algorithmic decision-making tools do not make disability-related inquiries prohibited by the ADA. It may be a mistake to assume that the tool’s creator has vetted the application to ensure ADA compliance. 

Although employers are mindful of their obligation to offer reasonable accommodations and avoid using methods to evaluate applicants or employees which may disadvantage qualified disabled individuals, the technology at issue is still emerging, and many employers may be unaware of how they work and how they may impact workers.  For that reason, careful consideration is needed to determine what tools will be used, and how, and what alternatives will be made available.