Federal enforcement authorities cautioned employers this week that using tools like artificial intelligence and machine learning in both employment hiring and performance monitoring may be discriminating against people with disabilities.
Technical assistance documents issued Thursday by the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (USDOJ) warned that blind reliance on tools that make use of AI, machine learning and other processes could impede access to opportunity for people with disabilities in violation of the Americans with Disabilities Act (ADA).
Some hiring technologies require an applicant to take a test with an algorithm, such as an online interactive game or personality assessment. However, employers must be sure the technology measures only relevant job skills and abilities, not an applicant’s impaired sensory, manual or speaking skills.
The ADA requires that employers provide reasonable accommodations to individuals with disabilities, including during the hiring process, unless doing so would create an undue hardship for the employer.
Reasonable accommodation is a change in the way things are usually done to give equal opportunities to a person with a disability in applying for a job, performing a job, or accessing the benefits and privileges of employment. Examples of accommodations include allowing use of assistive equipment, modifying policies, or making other changes to the way the hiring process or job is performed.
For example, employers who use facial and voice analysis technologies to evaluate applicants’ skills and abilities, may be unintentionally screening out people with autism or speech impairments, even if they are qualified to do the job. Employers who use an online interview program that does not work with a blind applicant’s computer screen-reader program, would also be discriminating against the disabled unless the applicant was provided with reasonable accommodation.
The government regulators said employers who use AI hiring technologies may need to implement new practices to ensure that applicants receive reasonable accommodations. These include:
- Telling job applicants about the type of technology being used and how applicants will be evaluated
- Providing enough information to applicants so that they may decide whether to seek reasonable accommodation
- Providing and implementing clear procedures for requesting reasonable accommodation and making sure that asking for one does not hurt the applicant’s chance of getting the job.