Hunton Employment & Labor Perspectives

The EEOC recently issued long awaited guidance on how an employer’s use of software, algorithms, and artificial intelligence will be treated by the Commission under the Americans with Disabilities Act (ADA). In issuing this guidance, the Commission focused on employers administering software that uses algorithmic decision-making or artificial intelligence in making employment decisions before and during employment. The Commission outlined three general areas in which the use of such technology may violate the ADA: (1) an employer not providing a reasonable accommodation that is necessary for a job applicant or employee to be rated fairly and accurately by the technology ; (2) an employer administering the technology to “screen out” job applicants; and (3) an employer using the technology to make disability related inquiries and medical examinations.

Reasonable Accommodations. Generally speaking, under the ADA, an employer must grant an applicant or employee reasonable accommodations that would allow the individual to perform the essential functions of the job. For reasonable accommodations, the EEOC has flagged an employer’s use of algorithmic decision-making tools to assess job applicants or employees as a potential area of concern under the ADA. Indeed, if an applicant or employee explains to the employer that a medical condition would make it difficult to use the software, the individual has requested a reasonable accommodation requiring the employer to engage in the interactive process and find a suitable accommodation for the individual. By way of example, when the documentation shows the disability might make a test more difficult or reduce the accuracy of the assessment, the employer may be required as a reasonable accommodation to provide an alternative testing format or a different type of skill assessment that more accurately judges the applicant’s or employee’s skills.  Under the Commission’s guidance, an employer can be held responsible pursuant to the ADA for the actions of software vendors acting on the employer’s behalf.

“Screening Out” Individuals. Another scenario in which the ADA could apply to software using algorithmic decision-making or artificial intelligence is to “screen out” individuals. “Screening out” occurs when a disability prevents a job applicant or employee from meeting – or lowers their performance on – a selection criteria, and the applicant or employee loses a job opportunity as a result. For example, a “screen out” may occur when a chat bot which is programmed to reject all applicants with an employment history gap excludes an applicant who has a gap in employment because of a disability. In warning against such practices, the EEOC explicitly cautions against using “bias free” software as a shield because such software may not be programmed to assess discrimination under the ADA.

Disability and Medical Related Inquiries. Lastly, the EEOC zeroed in on circumstances in which an applicant has not been extended an offer of employment. At that stage of the employment lifecycle, an employer may run afoul of the ADA if it utilizes software that seeks information about an applicant’s physical or mental impairments or health, a practice that is generally prohibited by the ADA.

All of this begs the question of what employers should do when utilizing software to make employment decisions before and during employment. Luckily, the EEOC provided a non-exhaustive list of “promising practices” which include, but are not limited to, informing all applicants who are being rated using software that reasonable accommodations are available, using algorithmic decision-making tools that only measure the abilities or qualifications truly necessary for the job, and confirming with a vendor before using its software that the tool does not ask job applicants or employees questions that are likely to elicit disability or medical related information. Yet, even with the EEOC’s guidance, the use of software employing algorithms and artificial intelligence is a new and developing area of the law.  As a result, Employers will want to consult with employment counsel before developing or hiring a vendor to administer software utilizing algorithms or artificial intelligence to make employment decisions.