EEOC and the DOJ Issue Guidance for Employers Using AI Tools to Assess Job Applicants and Employees

Employers are extra often counting on the use of Synthetic Intelligence (“AI”) instruments to automate employment decision-making, reminiscent of software program that may overview resumes and “chatbots” that interview and display job candidates. We’ve beforehand blogged about the authorized dangers attendant to the use of such applied sciences, together with right here and here.

On Could 12, 2022, the Equal Employment Alternative Fee (“EEOC”) issued long-awaited guidance on the use of such AI instruments (the “Guidance”), inspecting how employers can search to stop AI-related incapacity discrimination. Extra particularly, the Guidance identifies numerous methods during which employment-related use of AI can, even unintentionally, violate the People with Disabilities Act (“ADA”), together with if:

  • (i) “[t]he employer does not provide a ‘reasonable accommodation’ that is necessary for a job applicant or employee to be rated fairly and accurately by” the AI;

  • (ii) “[t]he employer relies on an algorithmic decision-making tool that intentionally or unintentionally ‘screens out’ an individual with a disability, even though that individual is able to do the job with a reasonable accommodation”; or

  • (iii) “[t]he employer adopts an [AI] tool for use with its job applicants or employees that violates the ADA’s restrictions on disability-related inquiries and medical examinations.”

The Guidance additional states that “[i]n many cases” employers are liable beneath the ADA for use of AI even when the instruments are designed and administered by a separate vendor, noting that “employers may be held responsible for the actions of their agents . . . if the employer has given them authority to act on [its] behalf.”

The Guidance additionally identifies varied finest practices for employers, together with:

  • Asserting typically that workers and candidates topic to an AI software might request cheap lodging and offering directions as to how to ask for lodging.

  • Offering details about the AI software, the way it works, and what it’s used for to the workers and candidates subjected to it. For instance, an employer that makes use of keystroke-monitoring software program might select to disclose this software program as a part of new workers’ onboarding and clarify that it’s supposed to measure worker productiveness.

  • If the software program was developed by a 3rd celebration, asking the vendor whether or not: (i) the AI software program was developed to accommodate folks with disabilities, and if that’s the case, how; (ii) there are different codecs out there for disabled people; and (iii) the AI software program asks questions doubtless to elicit medical or disability-related info.

  • If an employer is creating its personal software program, partaking specialists to analyze the algorithm for potential biases at totally different steps of the growth course of, reminiscent of a psychologist if the software is meant to check cognitive traits.

  • Solely utilizing AI instruments that measure, instantly, traits which can be really mandatory for performing the job’s duties.

  • Moreover, it’s all the time a finest apply to practice employees, particularly supervisors and managers, how to acknowledge requests for cheap lodging and to reply promptly and successfully to these requests. If the AI software is utilized by a 3rd celebration on the employer’s behalf, that third celebration’s employees also needs to be skilled to acknowledge requests for cheap lodging and ahead them promptly to the employer.

Lastly, additionally on Could 12th, the U.S. Division of Justice (“DOJ”) launched its personal guidance on AI instruments’ potential for inadvertent incapacity discrimination in the employment context. The DOJ steerage is essentially in accord with the EEOC Guidance.

Employers using AI instruments ought to fastidiously audit them to make sure that this know-how will not be creating discriminatory outcomes.  Likewise, employers should stay carefully apprised of any new developments from the EEOC and native, state, and federal legislatures and companies as the development towards regulation continues.

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