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May 12, 2022
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The Equal Employment Opportunity Commission (EEOC) and U.S. Department of Justice (DOJ) each recently published guidance on the use of artificial intelligence (AI) in managing job applicants and employees. The EEOC enforces disability discrimination laws with respect to employers in the private sector and the federal government. The DOJ enforces disability discrimination laws with respect to state and local government employers. The obligation to avoid disability discrimination in employment applies to both public and private employers.
The guidance highlights how reliance on AI can lead to discrimination under the Americans with Disabilities Act (ADA) or other anti-discrimination laws. Notably, the steps to reduce discrimination based on disability may be different than those based on other protected categories. Some key considerations for those with disabilities include:
- Reasonable Accommodation: Employers must ensure that those qualifying for reasonable accommodation be rated fairly and accurately when using algorithmic decision-making tools. Similarly, screening requirements (e.g., job assessments, video interviews) must be able to account for the need for reasonable accommodations.
- Screening: AI may be used to screen applicants; however, the parameters must be reviewed for intentionally or unintentionally excluding those who would otherwise qualify as candidates. This may occur through choice of key word selection when organizing resumes, limiting review to individuals in a certain geographic area, screening out applicants with gaps in employment where the gap may be caused by a disability, etc.
- Disability-related inquiries and medical examinations: Employers must ensure that their AI tools do not violate the ADA in this area, regardless of whether or not an individual actually has a disability.
The EEOC highlights the fact that employers may be responsible under the ADA for use of algorithmic decision-making tools even if the tools are designed or administered by another entity.
To avoid exposure, employers should regularly review their AI programs for compliance. There are other steps employers may take to avoid exposure. For example, an employer may tell applicants or employees what steps an evaluation process includes and may ask them whether they will need reasonable accommodations to complete it. It is also important for employers to have job descriptions that indicate necessary abilities or qualifications, with or without an accommodation. Finally, employers should coordinate with program vendors on managing requests for reasonable accommodation to ensure that they are properly addressed.
- Review administrative guidance as applicable.
- Implement procedures to regularly review AI tools for compliance.
- Review compliance requirements with applicable vendors.
- Have job descriptions reviewed and updated, as needed.
- Have appropriate personnel trained on compliance.
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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase