Safely Navigating the Use of Artificial Intelligence in Employment

The use of artificial intelligence (AI) and algorithmic decision making is becoming more prevalent in almost every area of life, and employment practices are no exception. AI can be used to help make data-driven decisions in hiring or measuring performance at an organization. In many cases, these technologies are a welcome upgrade to fields that have frequently been overrun with subjectivity in the past. However, there are some potential dark sides to the use of AI in employment, and recent statements from regulatory agencies reflect one of those major concerns: the ADA. The EEOC and DOJ both recently released guidance regarding the use of algorithms and artificial intelligence to assess job applicants and current employees, cautioning that employers’ use of technologies can result in violation of Title 1 of the Americans with Disabilities Act (ADA) if used improperly.

The DOJ provides the following relevant definitions:

• An algorithm is a set of steps for a computer to accomplish a task—for example, searching for certain words in a group of resumes.
• Artificial intelligence generally means that a computer is completing a task that is usually done by a person
• 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.

The guidance from the EEOC and the DOJ caution against the same general notions: even if a company isn’t intending to discriminate, if the technology results in ‘screening out’ individuals with disabilities or they fail to provide reasonable accommodations that would allow the applicant or employee to perform the task, this will be viewed as disparate impact and subject to investigation. This technical assistance comes after the EEOC announced in October 2021 that the agency would address potential biases in hiring technologies. The basic message from these agencies is simple: AI is and will continue to be used in many ways by employers, but these practices can be a slippery slope and intended or unintended violations of the ADA won’t be tolerated.

AI won’t be leaving the business world anytime soon, and there are many exciting avenues that employers can take in utilizing these burgeoning technologies to improve their business. However, it is imperative that employers consider how any tools they use impact individuals with disabilities and if the algorithms “learn” to discriminate against other protected groups based upon the still subjective final hiring decisions. The keys are ensuring that technologies evaluate job skills and not disabilities and offering reasonable accommodations for applicants/employees with disabilities. If you’re an employer taking advantage of AI in hiring or performance, be sure to review the technical assistance from these agencies and safeguard your compliance.