AI used in hiring can discriminate against candidates with disabilities; EEOC and DOJ Issue Guidance for Employers | Haynsworth Sinkler Boyd, Pennsylvania

Many employers use artificial intelligence (AI) to reduce hiring bias, but studies indicate that some AIs discriminate based on disability. The Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) have determined that employers using AI in the hiring process may discriminate against applicants and disabled employees. On May 12, 2022the DOJ and EEOC have published technical guidance for employers on the use of AI and steps employers should take to prevent discrimination.

The EEOC identified the following common cases where an employer’s use of AI could violate the Americans with Disabilities Act (ADA):

  1. The employer does not provide reasonable accommodation necessary for an applicant or employee to be treated fairly and accurately by the algorithm. The employer should ensure that the AI ​​tool affirmatively informs applicants that reasonable accommodations may be requested and provides clear instructions for requesting the accommodation. Staff should be trained to recognize these requests and respond to them as quickly as possible. Here are some examples of accommodation:

    1. Specialized equipment,

    2. Alternative tests or test formats,

    3. Permission to test in a quiet setting or take longer to test, or

    4. The documents are provided in different formats to ensure accessibility.

  2. The employer relies on the algorithmic decision-making tool that intentionally or unintentionally “eliminates” a disabled person who is otherwise able to do the job with reasonable accommodation. “Elimination” occurs when a disability prevents the candidate or employee from meeting a selection criterion or diminishes their performance, causing the candidate or employee to lose the employment opportunity. For instance:

    1. A chatbot weeds out a candidate who has had job interruptions due to a disability or medical treatment, or

    2. A chatbot eliminates a candidate due to their speech, obstacles, facial expressions or lack of eye contact.

  3. Employer use of AI violates ADA restrictions on medical information requests if the AI ​​tool asks applicants or employees questions that may elicit information about a disability or condition. physical or mental impairment. This would include making “disability-related inquiries” or seeking information that could qualify as a “medical examination” before giving the candidate a conditional job offer.

As such, employers should take the following steps to ensure that their AI tool does not violate the ADA:

  1. The AI ​​tool should only measure abilities or qualifications that are really needed for the job. These qualifications should be measured directly, rather than the AI ​​making inferences about a candidate’s qualifications based on characteristics that correlate to those abilities or qualifications.

  2. Employers should ask the software vendor who developed their AI tool:

    1. Was the tool developed with people with different abilities in mind? If yes, which groups has the supplier assessed using the tool?

    2. Has the vendor attempted to determine if the tool discriminates against people with disabilities?

    3. Can the vendor confirm that the tool does not ask questions that may elicit information about an individual’s physical or mental impairments?

  3. An employer should test the AI ​​tool for discriminatory practices before using it, as recommended by both the EEOC and the DOJ.

Any EEOC investigator investigating a discriminatory hiring practice based on AI will expect to see evidence that these actions were taken. Employers who use a third-party vendor or AI designed by another company will not be immune from liability for discrimination, as is the case with outsourced employment compliance generally.

It’s important for employers to review their RN hiring tools to ensure they comply with the latest DOJ and EEOC guidelines. Although the DOJ has published technical guidelines, it provides less detail than that of the EEOC. If an employer complies with the EEOC guidelines, they will most likely also comply with the DOJ guidelines. Employers should always consult their legal advisor if in doubt about their compliance.

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