Federal authorities are cautioning employers about using tools like artificial intelligence (AI) in employment decisions because it could impede access to opportunities for people with disabilities in violation of the Americans with Disabilities Act (ADA).

The Department of Justice (DoJ) and the Equal Employment Opportunity Commission (EEOC) each released guidance on May 12 that tackles disability discrimination in employment decisions made with the use of AI and other software tools.

The DoJ guidance – Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring – provides a broad overview of rights and responsibilities, making it easily accessible to people without a legal or technical background. The DoJ guidance:

  • Provides examples of the types of technological tools that employers are using;
  • Clarifies that, when designing or choosing technological tools, employers must consider how their tools could impact different disabilities;
  • Explains employers’ obligations under the ADA when using algorithmic decision-making tools, including when an employer must provide a reasonable accommodation; and
  • Provides information for employees on what to do 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 of the Justice Department’s Civil Rights Division in a press release. “This guidance will help the public understand how an employer’s use of such tools may violate the [ADA] so that people with disabilities know their rights and employers can take action to avoid discrimination.”

The EEOC technical assistance document – The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees – outlines issues that employers should consider to ensure that the use of software tools in employment does not disadvantage workers or applicants with disabilities in ways that violate the ADA.

The guidance establishes three primary concerns:

  • Employers should have a process in place to provide reasonable accommodations when using algorithmic decision-making tools;
  • Without proper safeguards, workers with disabilities may be “screened out” from a job or promotion even if they can do the job with or without reasonable accommodations; and
  • If the use of AI or algorithms results in applicants or employees having to provide information about disabilities or medical conditions, it may result in prohibited disability-related inquiries or medical exams.

Algorithmic decision-making tools – particularly when used to hire, monitor performance, determine pay, determine performance, or establish other terms and conditions of employment –may discriminate against people with disabilities, the agencies warned.

The EEOC’s guidance is part of the agency’ AI and Algorithmic Fairness Initiative to ensure that the use of software in hiring and other employment decisions complies with the Federal civil rights laws. The EEOC also released a summary document providing tips for job applicants and employees.

“New technologies should not become new ways to discriminate. If employers are aware of the ways AI and other technologies can discriminate against persons with disabilities, they can take steps to prevent it,” said EEOC Chair Charlotte A. Burrows. “As a nation, we can come together to create workplaces where all employees are treated fairly. This new technical assistance document will help ensure that persons with disabilities are included in the employment opportunities of the future.”

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Lisbeth Perez
Lisbeth Perez
Lisbeth Perez is a MeriTalk Senior Technology Reporter covering the intersection of government and technology.