EEOC And DOJ Issue Guidance On How AI Can Violate The ADA

The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) have each released a guidance for employers on how to avoid discrimination under the Americans with Disabilities Act (ADA) when using artificial intelligence (AI) and other software tools to make employment decisions.

The EEOC recognizes that employers may use “computer-based tools” (software, algorithms, and/or AI) to assist in hiring, monitor performance, determine pay or promotions, and establish terms and conditions of employment. The EEOC cautions that while such tools may “save time and effort, increase objectivity, or decrease bias,” they may also disadvantage job applicants and employees with disabilities. As part of its Artificial Intelligence and Algorithmic Fairness Initiative, the EEOC’s guidance explains how these tools could result in an ADA violation. The EEOC stress three primary points:

• Employers should have a process in place to provide reasonable accommodations when using algorithmic decision-making tools.
• Without 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.
• If the use of AI or algorithms results in applicants or employees having to provide information about disabilities or medical conditions, it may result in prohibited disability-related inquiries or medical exams.

The DOJ’s guidance provides “that when designing or choosing technological tools, employers must consider how their tools could impact different disabilities.” It explains employers’ obligations under the ADA when using algorithmic decision-making tools, including when an employer must provide a reasonable accommodation.

We encourage all employers to review these documents to learn more about this area of concern. If you need assistance with your employment tools or have questions, please contact a KZA attorney.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.