Justice Department and EEOC Issue Guidance on Disability Discrimination in Use of Artificial Intelligence in Hiring

Brooks Pierce

Brooks Pierce

As the use of artificial intelligence (AI) becomes more prevalent in hiring practices, the U.S. Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) issued joint guidance on May 12, 2022, alerting employers and employees on ways smart technological tools may unwittingly violate the Americans with Disabilities Act (ADA), as amended.

Examples of AI in hiring include:

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

The 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 utilizing the technology.

In light of this guidance, employers should:

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

As technology becomes more entrenched in the hiring process, employers need to ensure that automation does not inadvertently lead to disability discrimination pitfalls. Employers should consult with their legal counsel with any questions concerning ADA compliance in general and AI in particular.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Brooks Pierce | Attorney Advertising

Written by:

Brooks Pierce

Brooks Pierce on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.