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EEOC and DOJ Release Guidance on Use of AI Tools in Employment Decisions 

The Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) recently released guidance on employers’ use of artificial intelligence (AI) tools in the course of making employment decisions. The technical assistance documents address the potential for disability discrimination when employers use artificial intelligence (AI), machine-learning and other emerging technologies to make employment decisions. This could include software tools related to recruitment, performance monitoring, or determining pay and/or promotions; computer-based tests for applicants; or software to score resumes. Such tools could result in discrimination against people with disabilities in violation of the Americans with Disabilities Act (ADA). The documents are:

• EEOC’s “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees” focuses on three primary concerns under the ADA:
  • Employers should have a process in place to provide reasonable accommodations when using algorithmic decision-making tools
  • Without proper safeguards, workers may be “screened out” from consideration in a job or promotion even if they can do the job with or without a reasonable accommodation
  • If the use of AI or algorithms results in workers having to provide information about disabilities or medical conditions, it may result in prohibited disability-related inquiries or medical exams
• DOJ’s “Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring” provides a plain-language overview of rights and responsibilities, including:
  • Examples of the types of technological tools employers are using
  • Clarification that employers must consider how their tools could impact different disabilities
  • Explanation of employers’ obligations under the ADA when using algorithmic decision-making tools, including when reasonable accommodations must be provided