By Andrew L. Scroggins and Sarah K. Bauman

 Seyfarth Synopsis: As we previously reported here, last October the EEOC put employers on notice of an initiative to ensure that artificial intelligence (“AI”) and other technology used in hiring and employment decisions comply with federal anti-discrimination laws. Consistent with this recent initiative, on May 12, 2022, the EEOC shared guidance to help employers using AI technology to remain compliant with the Americans With Disabilities Act (“ADA”). The DOJ followed suit by posting similar guidance regarding AI-related disability discrimination on the same day.

These guides are an important read for employers who presently use — or are considering using — AI and other technological tools to increase efficiency in hiring and employment decisions.

The EEOC’s Guidance

Entitled the “Americans With Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees,” available here, the EEOC’s guidance discusses how existing ADA requirements may apply to the use of AI, software applications, and algorithms in employment-related decision-making processes and practices. The guidance also offers useful information and tips to employers in an effort to assist them with ADA compliance when using such tools.

Specifically, the EEOC explains how an employer’s use of AI and other technological tools can discriminate against disabled individuals within the meaning of the ADA, group the potential types of discrimination into three broad categories: (1) failing to reasonably accommodate an employee’s disability; (2) screening out qualified individuals with disabilities; or (3) posing “disability-related inquiries” or seeking information that qualifies as “medical examination,” before giving the candidate a conditional offer of employment. The guidance concludes by providing employers with promising practices to be followed when assessing job applicants and employees with AI tools.

The EEOC provides several examples of how the above three ADA violations could be implicated. For example, if an employer administers a test through computer software, it risks violating the ADA if it fails to offer extended time or an alternative version of a test, such as one that is compatible with accessible technology (like a screen reader) as a reasonable accommodation to those who need it on account of their disability. Similarly, employers may run afoul of the law if AI and other tools result in lower scores or assessment results for individuals with disabilities.

The EEOC recommends several promising practices for employers when using AI tools, such as: training staff to recognize and process requests for reasonable accommodations as quickly as possible; informing job applicants and employees that reasonable accommodations are available for individuals with covered disabilities; ensuring that AI tools only measure abilities or qualifications that are truly necessary for the job; and confirming, before purchase, with AI vendors that the AI tool does not ask individuals questions likely to elicit information about a disability.

The DOJ’s Guidance

Entitled “Algorithms, Artificial, and Disability Discrimination in Hiring,” the DOJ’s guidance, available here, similarly explains how algorithms and AI intelligence can lead to disability discrimination in hiring, particularly with respect to reasonable accommodations and screen-outs.

The DOJ’s guidance provides various examples of the types of technological tools that employers are using and the ways in which such tools can discriminate in failing to reasonable accommodate or screening out disabled applicants. The guidance also provides recommendations to employers on ADA-compliant practices, such as providing and implementing clear procedures for requesting reasonable accommodations.

Implications For Employers

From FY 2020 to FY 2021, ADA cases increased fairly significantly, and they now represent 36% of all charges filed with the EEOC. As these types of claims continue to rise, businesses should be aware of the specific ways in which technological advancements like AI tools can lead to disability discrimination charges and lawsuits. This is especially important for businesses that continue to grow — thereby requiring increased efficiency in the hiring process — in the midst of a global pandemic where remote work (and use of digital platforms) have become the norm.