The use of artificial intelligence in the workplace has been at the center of the Equal Employment Opportunity Commission’s recent guidance on “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees.”
The guidance can help employers understand the ADA requirements when using AI in employment-related decision-making, and can also help applicants and employees in understanding how to address disability-related concerns when applying for jobs or promotions.
Employers have implemented a variety of software programs in the recruitment process such as automatic résumé-screening software, hiring software, chatbot software for hiring and workflow, video interviewing software, analytics software, employee monitoring software, and worker management software.
The ADA is a federal civil rights law that prohibits discrimination and requires reasonable accommodations to applicants and employees with disabilities. The federal law covers employers with 15 or more employees, but Virginia state law covers those with more than five employees.
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The EEOC has a broad definition of “disability,” but generally it can include a physical or mental impairment.
Even if an employer uses a third party to administer its algorithmic decision-making, the employer can still be responsible for violating the ADA if the software discriminates against a person with a disability.
While the ADA prohibits disability-related inquiries prior to an offer of employment, the employer can provide applicants with information that reasonable accommodations are available to them. For example, if a hiring process includes a video interview, the employer or software vendor may tell applicants that the job application process will involve a video interview and provide a way to request a reasonable accommodation.
If an applicant requests a reasonable accommodation, the employer needs to respond promptly and provide a reasonable accommodation, unless doing so would involve significant difficulty or expense. Mere inconvenience is not enough to show undue hardship.
For example, some employers use a knowledge test software that tracks timing, but an applicant may have limited mobility making it difficult to use a keyboard. The EEOC stated, “In this situation, the employer would need to provide an accessible version of the test (for example, one in which the applicant is able to provide responses orally, rather than manually) as a reasonable accommodation, unless doing so would cause undue hardship. If it is not possible to make the test accessible, the ADA requires the employer to consider providing an alternative test of the applicant’s knowledge as a reasonable accommodation, barring undue hardship.”
Any medical information collected in connection with the reasonable accommodation request must be kept separate from the applicant or employee’s personnel file.
Employers also need to be cautious about screen out algorithms. Screen out is unlawful if the individual who is screened out is able to perform the essential functions of the job with a reasonable accommodation.
For example, employers may use a video chatbox that analyzes applicants’ speech patterns to reach conclusions about their ability to solve problems, but it will not likely score an applicant fairly if the applicant has a speech impediment that causes significant differences in speech patterns.
The EEOC also cautioned against “gamified” tests, which use video games to measure abilities, personality traits and other qualities, to assess applicants and employees. The EEOC said, “If a business requires a 90 percent score on a gamified assessment of memory, an applicant who is blind and therefore cannot play these particular games would not be able to score 90 percent on the assessment and would be rejected. But the applicant still might have a very good memory and be perfectly able to perform the essential functions of a job that requires a good memory.” This is true even if the test has been “validated.”
Employers who use vendors should inquire whether the tool was developed with individuals with disabilities in mind, including whether the tool could require disclosure of medical information, whether the interface is accessible, whether there are alternative formats and what efforts the vendor has made to make sure the algorithm does not disadvantage individuals with disabilities.
In addition to the inquiry, employers should consider disability-related issues in implementation. The EEOC suggests:
- clearly indicating that reasonable accommodations, including alternative formats and alternative tests, are available to people with disabilities;
- providing clear instructions for requesting reasonable accommodations; and
- in advance of the assessment, providing all job applicants and employees who are undergoing assessment by the algorithmic decision-making tool with as much information about the tool as possible, including information about which traits or characteristics the tool is designed to measure, the methods by which those traits or characteristics are to be measured, and the disabilities, if any, that might potentially lower the assessment results or cause screen out.
Employers should make sure that anyone involved in the process understand the ADA and how to evaluate reasonable accommodation requests.
Karen Michael is an attorney and president of Richmond-based Karen Michael PLC and author of “Stay Hired.” She can be reached at [email protected]