Agencies Offer Tools to Help Employers Using AI Avoid Disability Discrimination

It is now a common practice for employers to use software tools to help them assess applicants, hire employees, gauge work performance and make pay or promotion decisions. Many of these tools use algorithms or artificial intelligence (AI) to determine results.

However, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) warn employers that the use of such tools could expose them to liability under the Americans with Disabilities Act (ADA) if the tools screen out qualified individuals with disabilities or the employer does not provide a “reasonable accommodation” that is necessary for a job applicant or employee to be rated fairly and accurately by the algorithm.

The EEOC released a technical assistance document focused on preventing discrimination against job seekers and employees with disabilities. It outlines issues to help employers ensure the use of software tools in employment does not disadvantage workers or applicants with disabilities in ways that violate the ADA. The document highlights practices employers can adopt to reduce the likelihood of disability discrimination.

The DOJ’s guidance document provides examples of technological tools that employers are using and clarifies that when designing or choosing these tools, employers must consider how they could impact different disabilities to comply with the ADA and avoid potential liability.

The EEOC’s technical assistance document is part of its Artificial Intelligence and Algorithmic Fairness Initiative, an agency-wide initiative launched in 2021 to ensure the use of software, including AI, machine learning and other emerging technologies used in employment decisions, complies with the federal civil rights laws that the EEOC enforces.

Please contact Mark Fijman or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice or guidance.