The U.S. Equal Employment Opportunity Commission (“EEOC”) has issued guidance on employers’ use of algorithms and artificial intelligence (“AI”) in the hiring and employee evaluation process to screen applicants and employees with disabilities. provided instructions to employers on how to avoid .[1]
Importantly, the EEOC guidance provides “good practices” that employers can use to comply with the ADA when using AI. This includes:
Training staff to recognize and process requests for reasonable accommodation as quickly as possible. An applicant or employee need not specifically refer to the ADA or use the phrase “reasonable accommodation” to request an accommodation.Rather, if the applicant or employee Mention If the conditions could make testing difficult or cause test results unacceptable to the employer, the EEOC considers this a request for reasonable accommodation. Examples of reasonable accommodation include specialized equipment, alternative tests or test formats, and exceptions to workplace policies. The guidance states that employers “need not reduce production or performance standards or eliminate essential jobs as a reasonable accommodation.”
If you use AI managed by a third party authorized to act on your employer’s behalf, ask that agency to promptly forward any requests for accommodations so your employer can process them . Employers may be held responsible for the actions of other parties that they authorize to act on their behalf.For example, if an applicant is taking a pre-employment test administered by a third-party software vendor (who is authorized to act on the employer’s behalf) and the applicant is unable to take the test due to a medical condition. test (considered a request for reasonable accommodation), and the vendor did not do it Employers may be held liable if they provide the accommodations required under the ADA, even if they were completely unaware that the applicant reported the problem or requested any accommodations from the vendor. there is. Therefore, if an employer is using AI managed by a third party, the employer should ask that agency to promptly forward any requests or feedback that may be considered a request for accommodations. , it is important for employers to be able to deal with them. Alternatively, an employer may contract with a third party requesting to provide reasonable accommodation on behalf of the employer in accordance with the employer’s obligations under the ADA.
Use AI designed to be accessible to individuals with as many different types of disabilities as possibleAI can exclude individuals based on disability. A “Screening Out” occurs when an applicant or employee fails to meet the performance criteria in the Selection Criteria due to a disability, resulting in the applicant or employee losing employment opportunities. For example, chatbots (that is, software designed to engage in communication online and via text or email) can be programmed with algorithms to reject applicants who indicate significant gaps in their work history. increase. However, if an individual’s employment gap is caused by their disability, the chatbot may exclude that individual because of their disability.
Employers warn against relying on ‘unbiased’ claimsImportantly, the guidance states that employers cannot rely on claims that AI is “bias-free.” Even if a vendor takes steps to avoid Title VII bias (race, gender, etc.), these steps are generally different from those needed to address disability bias. Steps that employers can take to reduce the likelihood of excluding an individual because of a disability include clearly stating that reasonable accommodations are available to persons with disabilities and clear instructions on how to request accommodations. and providing applicants and employees for AI-assisted assessments. Provide as much information as possible.
Prevent third-party vendor AI from asking failure-related questions otherwise If your inquiry is about a request for reasonable accommodation. AI may not include illegal disability-related inquiries or medical examinations. Prior to a conditional offer of employment, if an employer uses her AI to “make ‘disability-related inquiries’ or solicit information equating to a ‘medical examination’,” it could violate the ADA. I have. Ask applicants or employees questions that elicit information about their disability or directly ask if the applicant or employee is an individual with a disability. If you “seek information about an individual’s physical or mental disability or health,” the assessment is considered a “physical examination.” However, once an individual begins employment, “disability-related inquiries may be made and medical examinations may be required where legally justified under the ADA.”
With the increasing use of AI in the context of employment, employers should be aware that the use of such technology may lead to unlawful discrimination. The EEOC recently issued this guidance, while state and local governments are beginning to pass laws related to the use of AI in employment. For example, New York City law requires employers to conduct bias audits on software-driven tools that significantly aid hiring and promotion decisions. The law is currently scheduled to come into force on January 1, 2023, with implementation of the law postponed until April 15, 2023. Additionally, the Federal Office of Contractual Compliance Programs has included questions about the use of AI in its latest proposed schedule. letters and bullet points.
