EEOC and DOJ issue guidance on AI | Manatt, Phelps & Phillips, LLP

Each agency has published a help desk document discussing the use of AI and other software tools that help employers screen new employees, monitor performance, and determine salaries or promotions.

The EEOC, which launched an AI in Employment initiative last fall, offered examples of software that can integrate algorithmic decision-making into different stages of the hiring process.

Resume scanners that prioritize applications using certain keywords, employee monitoring software that rates employees based on their keystrokes or other factors, and “virtual assistants” or “chatbots” which quizzes applicants on their qualifications and rejects those who do not meet predefined requirements all were on the list, as well as video interview software that assesses applicants based on their facial expressions and speech patterns , and testing software that provides “job fit” scores for applicants or employees based on their personality, aptitudes, cognitive skills, or perceived “cultural fit.” based on their performance on a game or on a more traditional test.

In a question-and-answer format, “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Candidates and Employees” also explained the most common ways in which the use of AI by a employer could violate the ADA.

For example, an employer violates the ADA if it does not provide reasonable accommodations necessary for an applicant or employee to be fairly and accurately assessed by the algorithm, or if it relies on a algorithmic decision making that, intentionally or unintentionally, eliminates a person with a disability, even if that person is able to do the job with reasonable accommodation.

An employer could also violate the ADA by adopting an algorithmic decision-making tool for use with its job applicants or employees that violates the ADA’s restrictions on disability-related medical inquiries and examinations.

The EEOC has provided “promising practices” to employers to help them comply with the ADA, including training staff to recognize and process reasonable accommodation requests as quickly as possible, and to develop or obtain alternative means of assessing candidates and employees when the current process is inaccessible or disadvantages a person who has requested reasonable accommodation due to a disability.

Employers must also use algorithmic decision-making tools designed to be accessible to people with as many different types of disabilities as possible, inform all job applicants and employees that reasonable accommodations are available for people with disabilities, and ensure that AI tools used only to measure abilities or qualifications that are really needed for the job.

The DOJ document, “Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring”, reminds that employers must take into account the impact that the use of AI tools could have on different disabilities.

“When designing or choosing hiring technologies to assess whether candidates or employees have the required skills, employers should assess whether those technologies unlawfully screen out people with disabilities,” the DOJ explained.Employers should review hiring technologies before they use them, and regularly when they are used, to assess whether they screen out people with disabilities who can perform the essential functions of the job with or without the required reasonable accommodations.

Testing technologies should assess job skills, not disabilities, the agency noted, using the example of a visually impaired school district applicant who was passed over for a staff assistant position because that he scored poorly on a computer test that required it. to see, even if he was able to do the job.

“If a test or technology screens out someone because of a disability when that person can actually do the job, an employer should instead use an accessible test that measures the candidate’s job skills, not their disability, or provide further adjustments to the hiring process so that a qualified individual is not screened out due to a disability,” the DOJ wrote.

To read the EEOC’s guidance, click here.

To read the DOJ guidelines, click here.

Why is this important: Employers should be aware that regulators are closely monitoring the use of AI in employment-related decisions and should review EEOC and DOJ guidance for assistance in staying compliant. ‘ADA.


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