EEOC Publishes Guidance on ADA and the Use of HR Assessment Software Using AI

Last year the Equal Employment Opportunity Commission (EEOC) launched an initiative to ensure that employer use of software including artificial intelligence (AI), machine learning, and other emerging technologies in hiring and making other employment decisions does not violate federal nondiscrimination laws. On May 12, 2022, the EEOC published technical assistance guidance for employers regarding the use of these technologies and compliance with the Americans with Disabilities Act (ADA). https://www.eeoc.gov/laws/guidance/americans-disabilities-act-and-use-software-algorithms-and-artificial-intelligence

All professionals involved in employment law compliance will find the material useful, but the technical assistance guidance is particularly valuable for recruiting and training leadership. There are definitions, examples, and Q & As to explain the issues and best practices.

Brief Summary of Guidance:

What kinds of software and AI are being used by employers today?

Some employers and software vendors use AI when developing algorithms to help employers evaluate, rate, or make other decisions about applicants and employees. The guidance cites examples of software that raise issues with ADA compliance, including:

• Automatic resume-screening;
• Virtual Assistants or Chatbot for hiring and workflow;
• Testing for applicant job ‘fit’;
• Video interviewing;
• Analytics;
• Employee monitoring; and
• Worker management.

How can employers get into trouble in using decision-making software or tools?

According to the guidance, the most common ways that an employer’s use of AI decision-making tools could lead employers to discriminate or appear to discriminate under the ADA are:

• When the employer, or the vendor administering an instrument on behalf of an employer, fails to make a needed reasonable accommodation to assure an applicant or employee is being scored or rated fairly.
• When the employer or its agent uses a tool that intentionally or unintentionally screens out an individual with a disability.
• When the tool conflicts with the ADA by asking applicants or employees questions that are likely to gather medical or disability information.

What are the EEOC’s recommendations to avoid decision-making software or tools problems?

1.  Assure that staff is trained to recognize and process requests for reasonable accommodation, including requests to retake a test in an alternative format or be assessed in an alternative way.
2. Assure that staff finds alternative means of rating job applicants and employees when an evaluation process is inaccessible or unfairly disadvantages someone who has requested a reasonable accommodation based on disability.
3. If a testing company or similar vendor is administering the tool for the employer, ask the entity to forward all accommodation requests promptly to be processed by the employer.
4. Use algorithmic decision-making tools that have been designed to be accessible to people with a broad range of disabilities.
5. Inform all job applicants and employees being rated that reasonable accommodations are available for individuals with disabilities and provide clear instructions for requesting accommodations.
6. Assure that decision-making tools only measure abilities or qualifications that are necessary for the job.

For more details on recognizing and avoiding discrimination risks in using decision-making tools, see the EEOC Guidance linked above.