EEOC: AI employment tools may create disability discrimination

On May 12, 2022, the Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) issued guidance to caution employers about using artificial intelligence (AI) and software tools to make employment decisions. The guidance, titled “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees,” warns that using the tools without safeguards could result in a disability discrimination lawsuit. The Americans with Disabilities Act (ADA) requires that people with disabilities have full access to public and private services and facilities. The federal law also bans employers from discriminating based on disabilities and requires them to provide reasonable accommodations to applicants and employees with disabilities so they can apply for or do a job.

Many companies rely on certain decision-making tech tools

Companies increasingly rely on online applications and computer-based preemployment assessments in hiring decisions, including:

• Job application screening software that prioritizes applications using certain keywords or automatically screens out candidates without certain qualifications; or
• Testing software that grades employees on personality traits, aptitudes, or cognitive skills.

Many employers rely on automated software tools to monitor existing employees’ locations, productivity, and performance. They also sometimes use the tools to make pay, disciplinary, and termination decisions.

Where you can run into problems