U.S. Government Warns Against Disability Discrimination

Use of Artificial Intelligence Can Violate the Americans with Disabilities Act

The U.S. Equal Employment Opportunity Commission (EEOC) and Department of Justice (DOJ) released guidance May 12, 2022, warning employers that the use of artificial intelligence (AI) technology to screen job candidates or monitor productivity can discriminate against people with disabilities, resulting in violation of the Americans with Disabilities Act.

AI tools can be used to scan resumes, measure the speed of computer keystrokes, facilitate online testing, and assist with video interviews to measure speech patterns or facial expressions. All of these can be used to discriminate in violation of the ADA. In separate guidance, both the EEOC and DOJ explain how an employer’s use of AI and other technology can discriminate against disabled individuals within the meaning of the ADA and provide employers with examples of practices they can use when screening potential employees and assessing workers.

Key Takeaways

  • Recent guidance from the EEOC and DOJ warns employers about the danger of using AI tools in hiring and employee evaluation.
  • The guidance points to the ways AI and other tools can discriminate in violation of the Americans with Disabilities Act (ADA).
  • The use of AI to scan resumes, measure keystroke speed, facilitate online testing, measure speech patterns, and facial expressions may result in discrimination within the meaning of the ADA.
  • The EEOC and DOJ provide guidance for employers to help them avoid discrimination issues.

Guidance from the EEOC

EEOC guidance titled, “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees,” focuses on helping employers avoid discriminating against job seekers and employees with disabilities. The document lists things employers should take into consideration to ensure ADA discrimination does not occur.

  • Employers should provide reasonable accommodations when using algorithmic decision-making tools
  • Employ safeguards to prevent workers with disabilities from being “screened out” from consideration for a job or promotion even if they can do the job with or without reasonable accommodation
  • Avoid the use of AI or algorithms that results in applicants or employees having to provide information about disabilities or medical conditions which may result in prohibited disability-related inquiries or medical exams

“New technologies should not become new ways to discriminate," said EEOC Chair Charlotte A. Burrows in a statement. "If employers are aware of the ways AI and other technologies can discriminate against persons with disabilities, they can take steps to prevent it."

DOJ Guidance for Employers and Employees

The DOJ’s guidance document, “Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring,” provides an overview of employee rights and employer responsibilities. The document:  

  • Provides examples of various AI and technological tools employers utilize for screening and assessment
  • Clarifies that employers must consider how their tools could impact different disabilities;
  • explains employer obligations under the ADA when using algorithmic decision-making tools, including when an employer must provide a reasonable accommodation
  • Provides information for employees on action they can take if they believe they have experienced discrimination.

“Algorithmic tools should not stand as a barrier for people with disabilities seeking access to jobs,” said Assistant Attorney General Kristen Clarke for the Justice Department’s Civil Rights Division. “This guidance will help the public understand how an employer’s use of such tools may violate the Americans with Disabilities Act, so that people with disabilities know their rights and employers can take action to avoid discrimination.”

Workplace Implications for AI

This latest warning from DOJ and EEOC signals the intent of the federal government to make employers and employees alike aware of the ways AI and other technological advancements can lead to discrimination in the workplace, especially in hiring and employee evaluation.

As businesses grow and seek out highly qualified employees in an increasingly success-oriented workforce, the employment of AI will likely continue to expand. This makes it important for all involved to guard against and protect themselves from AI discrimination. Ultimately, the responsibility falls on employers to carefully audit AI tools and apprise themselves of new developments from the government as regulation becomes more prevalent.

Article Sources
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  1. EEOC. "U.S. EEOC and U.S. Department of Justice Warn against Disability Discrimination."

  2. DOJ. "Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring."

  3. EEOC. "The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees."

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