Use of Artificial Intelligence in Employment-Related Decision-Making May Result in Discrimination

Jordan Brickman, Associate

On May 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) issued a new comprehensive “technical assistance" guidance, The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees.[1] The EEOC guidance discusses how existing Americans with Disabilities Act (“ADA”) requirements may apply to the use of artificial intelligence (“AI”) in employment-related decision making and offers promising practices for employers to help with ADA compliance when using AI decision making tools.[2]

For instance, the EEOC states that algorithmic decision-making tools that “screen out” individuals who are able to perform the essential functions of the job with a reasonable accommodation is a violation of the ADA, and that an employer’s ignorance as to the discriminatory effect of the AI will not on its own alleviate liability.[3] The EEOC provides that a disability could have this screen out effect by reducing the accuracy of the employment assessment, causing the individual to receive a lower score or result, creating special circumstances that have not been taken into account, or preventing the individual from participating in the assessment altogether.[4] AI-driven tools can generate unlawful "disability-related inquires" or seek information as part of a "medical examination"[5] before approving candidates for conditional offers of employment.

Algorithmic decision-making tools, including tools that rely on artificial intelligence, can implicate not just the ADA, but other employment discrimination statutes as well, including Title VII of the Civil Rights Act (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”), which together prohibit discrimination against individuals because of race, gender, ethnicity, national origin, religion, sexual orientation, age, etc.[6] Although the steps taken to avoid Title VII bias are typically distinct from the steps needed to address the problem of disability bias in employment.

The EEOC advises employers to clearly indicate that reasonable accommodations, including, alternative formats and alternative tests, are available to people with disabilities; provide clear instructions for requesting a reasonable accommodation; and in advance of an assessment, provide all candidates what the evaluation entails including disclosure of the knowledge, skill, ability, education, experience, quality, or trait that will be measured or screened by the AI tool.[7]

Key Takeaway

In response to this new guidance, employers should review their use of algorithmic decision-making software, ensure they understand the tools being used, and offer reasonable accommodations to applicants as necessary to comply with the ADA. 

[1] https://www.eeoc.gov/laws/guidance/americans-disabilities-act-and-use-software-algorithms-and-artificial-intelligence, last visited June 9, 2022. ADA, 29 CFR Part 1630 & app.

[2] Id.

[3] Id.

[4] Id.

[5] "An assessment includes 'disability-related inquiries' if it asks job applicants or employees questions that are likely to elicit information about a disability or directly asks whether an applicant or employee is an individual with a disability. It qualifies as a "medical examination" if it seeks information about an individual's physical or mental impairments or health. An algorithmic decision-making tool that could be used to identify an applicant's medical conditions would violate these restrictions if it were administered prior to a conditional offer of employment." Id.

[6] Id.

[7] Id.