The use of artificial intelligence, or AI, is becoming a fact of life. For companies, technology has progressed to simplify processes, increase convenience, lower costs of doing business, and generally make our work lives easier. But this ease may come with legal pitfalls. AI is being used across human resources to select new employees, monitor employee performance, and determine compensation or promotions. However, employers who use it in this way and do not take into consideration how the AI they are using may negatively impact the candidates and employees who may have difficulty navigating the software could be in violation of the Americans with Disabilities Act (“ADA”).

We’ll focus on the hiring process. Here are some ways to ensure you remain compliant:

Test Only for Required Skills and Abilities

On May 12, 2022, the EEOC and DOJ released documents demonstrating how an employer’s use of AI and other technological tools could violate the ADA. The DOJ’s guidance lays out the possible violations in the various steps of the hiring process. For example, companies may use technology to advertise positions, decide if an applicant meets certain job qualifications by scoring an applicant’s resume, hold online interviews of applicants, and use computer-based tests to measure an applicant’s skills and abilities. Many of these technologies use algorithms or AI to complete these tasks and make evaluations and recommendations that have historically been done by a person, such as recognizing facial expressions during a video interview. The problem is that the use of AI may result in unlawful, discrimination if it unfairly screens out qualified individuals with disabilities. 

Under the ADA, employers must ensure that any tests measure only the relevant skills and abilities of an applicant. For example, a visually-impaired individual may do poorly on a computer-based test that requires them to see, even though vision is not necessary for the applicant to otherwise do the job. Therefore, an employer should only use tests that measure the applicant’s skills that are required to do the job; or make other adjustments to the hiring process so that qualified individuals are not eliminated because of a disability. Additionally, employers must ensure that the software they use does not seek medical or disability-related information outside of information required to provide a reasonable accommodation.

Provide Reasonable Accommodation

Employers must provide requested reasonable accommodation that will allow applicants with disabilities to meet the employer’s qualification standards that are job-related and consistent with business necessity unless doing so would be an undue hardship on the employer. Employers may need to make adjustments including:

• Telling applicants about the technology being used and how they will be evaluated;
• Providing enough information so that applicants may decide whether to seek a reasonable accommodation;
• Providing and implementing clear procedures for requesting reasonable accommodation and making sure that asking for it does not hurt the applicant’s chance of getting the job;
• Training staff to recognize and process requests for reasonable accommodation as quickly as possible, including requests to retake a test in an alternative format or to be assessed in an alternative way after the individual has received poor results; and
• Training staff to develop or obtain alternative means of rating job applicants when the current evaluation process is inaccessible or otherwise unfairly disadvantages individuals with disabilities.

Evaluate Your Use of AI

It is imperative that employers consider whether their use of AI may be negatively impacting individuals with disabilities whether or not they’ve developed the software themselves. The EEOC’s guidance explains that employers may be held responsible for ADA discrimination if their pre-employment tests discriminate against individuals with disabilities, even if the tests are developed by an outside vendor as employers may be held responsible for the actions of their agents.

Consider these tips from the EEOC on what an employer can do to reduce the chances of the AI screening out job candidates:

• If the software requires applicants to engage a user interface, is the interface accessible to as many individuals with disabilities as possible?
• May the applicant materials be presented to job applicants in alternative formats?
• Are there any kinds of disabilities for which there are no alternative formats so that the employer must provide an alternative to the software (absent undue hardship)?
• Does the algorithm used unlawfully disadvantage individuals with disabilities?

What Does This Mean For You?

The EEOC’s and DOJ’s guidance highlights the need for employers to be aware that their use of software and AI that adversely affects individuals with disabilities could constitute disability discrimination under the ADA. While we’ve focused on the hiring process, the same principles apply for software and processes used to evaluate employees. 

Whether your company already uses software to screen and measure applicants or employees, or you are considering using such software, it is worth taking the time to ensure you are not inadvertently violating the ADA. Violations are costly. 

Before joining Stanton Law, Amy Thomson was on the front lines in a human resources role that required her to mitigate risk at all levels. Now she uses her firsthand experience and legal expertise to help others navigate the potential minefield of employment law. Schedule a consultation with her today to ensure your hiring policies are in order.