EEOC & DOJ Cautions Against Using AI to Make Employment Decisions

Artificial intelligence or AI continues to be a hot topic in HR. Seamless, touch-free use of complex hiring technologies has been the mark of a faster way to source and onboard candidates. Automating parts of the hiring process to boost efficiency is evident in:

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• Applicant tracking systems
• HR information systems
• Online assessments
• And more

Innovative workflow tools are one thing, but AI-automated hiring is a more controversial concept. Two of the most HR-influential federal agencies encourage caution when taking advantage of automated hiring decisions – specifically using AI.

On May 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) each made announcements. They gave guidance on using AI and other software tools to make employment decisions.

According to the EEOC press release,

“Employers increasingly use AI and other software tools to help them select new employees, monitor performance, and determine pay or promotions. Employers may give computer-based tests to applicants or use computer software to score applicants’ resumes. Many of these tools use algorithms or AI. These tools may result in unlawful discrimination against people with disabilities in violation of the Americans with Disabilities Act (ADA).”

EEOC Guidance for Algorithmic Decision-making

The EEOC released a technical assistance document called “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees.” It points out common ways an employer’s algorithmic decision-making tool could violate the ADA.

The employer relies on an algorithmic decision-making tool that could “screen out” an individual with a disability. This can happen even if the individual is able to do the job with reasonable accommodation.

Results from assessment tools could “screen out” job applicants or employees if a disability:

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• Lowers performance on an assessment
• Reduces accuracy of the assessment
• Creates special circumstances that employers need to consider
• Prevents participation in an assessment

The employer uses an algorithmic decision-making tool that violates the ADA’s restrictions on disability-related inquiries and medical examinations.

According to the EEOC guidance, if an employer fails to offer a “reasonable accommodation” that is necessary for a fair and accurate rating of the job applicant or employee by the algorithm, that could also violate the ADA.

DOJ Guidance for Algorithmic Decision-making

In its guidance, “Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring,” the DOJ notes that:

“The Americans with Disabilities Act (ADA) is a federal law that seeks to remove barriers for people with disabilities in everyday activities, including employment. The ADA applies to all parts of employment, including how an employer selects, tests, or promotes employees. An employer who chooses to use a hiring technology must ensure that its use does not cause unlawful discrimination on the basis of disability… When designing or choosing hiring technologies, employers must consider how their tools could impact different disabilities.”

How does the DOJ guidance affect access to jobs? The DOJ echoes the EEOC, focusing on assessment technologies and reasonable accommodations. According to the DOJ, employers may potentially avoid disability discrimination when using hiring technologies by:

1. Focusing on relevance to the job. Testing technology must evaluate job skills, not disabilities. Screening applicants with tests, assessments, or games should reveal only relevant skills and abilities. If a test or technology disqualifies a qualified applicant because of a disability, an employer should instead use an accessible test or make other adjustments to their hiring process.

2. Providing reasonable accommodations to those with disabilities. The ADA requires employers provide reasonable accommodations to individuals with disabilities, including during the hiring process, unless doing so would cause undue hardship for the employer. The DOJ notes that some examples of accommodations could include allowing the applicant to use assistive equipment, modifying policies, or making other changes to the hiring process or the job. Employers that use hiring and assessment technologies may need to adopt practices to ensure applicants receive reasonable accommodations, if required. This could include telling applicants about the technology used for evaluation. By providing enough information, applicants can decide to seek a reasonable accommodation. Employers may also want to provide clear procedures to request an accommodation and ensure that asking for an accommodation doesn’t hurt an applicant’s chance of getting the job.

“Algorithmic tools should not stand as a barrier for people with disabilities seeking access to jobs,” said Assistant Attorney General Kristen Clarke for the DOJ’s Civil Rights Division. “This guidance will help the public understand how an employer’s use of such tools may violate the Americans with Disabilities Act, so that people with disabilities know their rights and employers can take action to avoid discrimination.”

Have questions about using AI and automation for employment decisions? You may consider reviewing candidate-facing tools and assessments with your attorney to get additional guidance on how to avoid disability discrimination.