US Justice Department and the EEOC issue guidance on disability discrimination in the use of artificial intelligence in hiring

Examples of AI in hiring include:

Advertising jobs to targeted applicants;

• Screening job applicants;
• Online interviewing with “chat” boxes;
• Using computerised screening tests that measure applicants’ skills, abilities, and personalities; and
• Scoring applicants’ resumes.

The DOJ and EEOC guidance clarifies that employers are responsible for ensuring their hiring technologies, including any embedded AI, comply fully with the ADA, even if the technology is administered by a third party. Regardless of intent, if the use of a technology has the effect of screening out applicants with disabilities, or adversely impacting individuals with a disability, the employer may be violating the ADA. Similarly, if an applicant requests a reasonable accommodation because the technology is not accessible due to the individual’s disability, the employer has an obligation to make a reasonable accommodation, even if the request is made to the third party utilising the technology.

Employers should:

• Examine computerised hiring tools to ensure AI algorithms do not unfairly screen out individuals with disabilities;
• Ensure technology is accessible to all individuals with disabilities;
• Provide to job applicants clear information and procedures for requesting a reasonable accommodation, and ensure that requesting an accommodation does not decrease an applicant’s chances of being hired;
• Screen technology vendors to ensure their compliance with the ADA; and
• Keep confidential all requests for accommodations and accommodations dialogues, and store related information in a confidential “medical” file.

As technology becomes more entrenched in hiring, employers need to ensure that automation does not inadvertently lead to disability discrimination pitfalls.

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Photo: Andrey Popov - stock.adobe.com