2022EEOCTechnology

Written By ESR News Blog Editor Thomas Ahearn

On May 12, 2022, the U.S. Department of Justice (DOJ) and the U.S. Equal Employment Opportunity Commission (EEOC) released technical assistance documents about disability discrimination when employers use artificial intelligence (AI) and software tools to make employment decisions, according to DOJ and EEOC press releases.

Employers use AI and other software tools to help them select new employees, monitor performance, and determine pay or promotions. 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).

The Justice Department’s guidance document is titled “Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring” and provides a broad overview of rights and responsibilities in plain language, making it easily accessible to people without a legal or technical background. This document from the DOJ:

  • Provides examples of the types of technological tools that employers are using;
  • Clarifies that, when designing or choosing technological tools, employers must consider how their tools could impact different disabilities;
  • Explains employers’ obligations under the ADA when using algorithmic decision-making tools, including when an employer must provide a reasonable accommodation; and
  • Provides information for employees on what to do if they believe they have experienced discrimination.

“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,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division.

The EEOC released a technical assistance document titled “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees” that focused on preventing discrimination against job seekers and employees with disabilities.

Based on the ADA, regulations, and existing policy guidance, this document outlines issues that employers should consider to ensure that the use of software tools in employment does not disadvantage workers or applicants with disabilities in ways that violate the ADA. The document focuses on three primary concerns:

  • Employers should have a process in place to provide reasonable accommodations when using algorithmic decision-making tools;
  • Without proper safeguards, workers with disabilities may be “screened out” from consideration in a job or promotion even if they can do the job with or without a reasonable accommodation; and
  • If the use of AI or algorithms results in applicants or employees having to provide information about disabilities or medical conditions, it may result in prohibited disability-related inquiries or medical exams.

The EEOC’s technical assistance document is part of its Artificial Intelligence and Algorithmic Fairness Initiative to ensure that the use of AI in hiring and other employment decisions complies with the federal civil rights laws. In addition, the EEOC released a summary document providing tips for job applicants and employees.

“If employers are aware of the ways AI and other technologies can discriminate against persons with disabilities, they can take steps to prevent it,” said EEOC Chair Charlotte A. Burrows. “This new technical assistance document will help ensure that persons with disabilities are included in the employment opportunities of the future.”

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