ARTIFICIAL INTELLIGENCE AND THE ADA: WHAT EMPLOYERS NEED TO KNOW

On May 12, 2022, the Equal Opportunity Employment Commission (“EEOC”) published guidance for employers using computer-based tools for employment decisions in compliance with the Americans with Disabilities Act (“ADA”). These tools may be used to screen applicant resumés, assess worker productivity, or determine pay and promotions, among other uses. Without certain safeguards, however, these tools may cause employers to “screen-out” or inadvertently discriminate against job applicants and current employees with disabilities. The guidance applies to three main categories of tools:

• Software refers to information technology programs or procedures that provide instructions to a computer on how to perform a given task or function, including applications. Software may be used for resumé–screening, chatbots, video interviewing, analytics, employee monitoring, and other employment uses.
• Algorithms refer to a set of instructions that can be followed by a computer to accomplish an objective. Employment software and apps often use algorithms to evaluate employees and job applicants. They can be used at various points in the employment process.
• Artificial Intelligence (“AI”) refers to a machine–based system that can, for a given set of human–defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments. Employers may rely on recommendations and predictions produced by AI to make decisions regarding hiring, promoting, and termination of employees.

The EEOC allows the use of these tools, but recommends employers follow a set of “promising practices” to ensure ADA compliance. These practices include providing reasonable accommodations when appropriate, training staff to recognize and respond to requests for reasonable accommodations as efficiently as possible, using accessible tools that have undergone user testing, and ensuring that tools directly assess only attributes that are necessary to perform the essential functions of a position. In addition, employers can be held responsible for discriminatory effects of software provided or utilized by a third party, so please proceed with caution.