According to a May 2022 technical guidance communication published by the United States Equal Opportunity Commission, the use of algorithmic decision-making tools and other forms of Artificial Intelligence (“AI”) may violate discrimination laws, particularly the Americans with Disabilities Act (“ADA”). As software programs and other technology become more commonly used in hiring and employee screening practices, it is essential to note the agency’s renewed focus on how such methods can leave marginalized groups such as disabled employees at a significant disadvantage and should be used with extreme care.

Specifically, the EEOC analyzed three ways an employer’s use of AI could violate the ADA:

• Failure to provide reasonable accommodation when employees or applicants fail to be fairly evaluated by algorithms and/or software programs;
• Reliance on AI without putting safeguards into place that could unintentionally screen out applicants with a disability, even though those employees are capable of performing the essential functions of the job with or without reasonable accommodation; and
• Where decision-making tools violate the ADA’s restrictions on disability-related inquiries and medical examinations.

Critical to the analysis is whether the employer creates adequate safeguards against discrimination when implementing AI and software-based employee screening programs. The EEOC document notes that employers are likely liable whether they develop and implement the programs themselves or rely on a third party to provide the service for them. Employers must establish proper procedures to vet and work with third parties to ensure disabled employees are accessed within any search features and that they are not screened out by the system. Additionally, disabled employees must be accurately scored by AI when a reasonable accommodation may be available to help them perform critical job functions.

Technology is a powerful tool, and modern employers are looking for any way to gain an edge over the competition in today’s limited available workforce. While employers may have the right intention when using software to assist with hiring decisions, like aptitude tests and other pre-employment screening procedures, such processes are always subject to scrutiny and potential discrimination charges. Therefore, employers should be careful and thorough in ensuring policies and strategies to limit the possibility that a pre-employment procedure could be discriminatory.

Syntrio’s library of courseware contains interview and hiring courses aimed at helping employers and managers learn the ins and outs of proper hiring procedures. Our staff seeks to partner with employers looking to improve their culture by protecting their workplace from unlawful discrimination and other impediments to a healthy work environment. We believe a positive culture starts at the recruitment and hiring stage and hope to work with your organization to help set a course for a vibrant community work environment.