PELRAS Update | June 2022 – Caution: the EEOC Warns that New Technology May Result in Illegal Discrimination Against Applicants or Employees

Benjamin R. Patchen, Esq., Campbell Durrant, P.C. | June 2022

On May 12, 2022, the Equal Employment Opportunity Commission “EEOC” released a technical assistance document titled “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees.” The purpose of the guidance is to assist applicants, employees and employers on the use of technology (artificial intelligence, algorithms and software) to ensure compliance with the ADA. This guidance also responds to the growing trend of employers to utilize technology as an efficient means to perform a variety of hiring or human resources functions. In this guidance, the EEOC cautions employers on the use of this technology as it may have the unintended consequence of screening out individuals with disabilities and, in some instances, may prompt individuals to disclose information about their disability or medical conditions in violation of the ADA.

Title I of the ADA prohibits employers from discriminating against applicants or employees on the basis of disability and requires that employers engage in the interactive process with disabled applicants/employees to determine whether there are reasonable accommodations required to fairly access the hiring process and/or to perform the essential functions of the position if employed. The EEOC identifies that the automation of hiring practices may inadvertently discriminate against individuals with physical or mental disabilities because the technology was developed without reference to how it is utilized by disabled individuals. For example, employers might use technology to direct job advertisements to targeted groups, to decide if an applicant meets job qualifications, to hold online video interviews of applicants, to use computer-based tests to measure an applicant’s skills or abilities, and/or to score an applicant’s resume.

While there are many different types of new technology impacting hiring, the EEOC’s guidance focuses on software, algorithms and artificial intelligence. Generally speaking, employers may be held liable for its use of these technologies even if the tools are designed or administered by another entity, such as a software vendor. The EEOC highlighted three (3) areas where new technology may violate the ADA: (1) failing to provide reasonable accommodations to applicants/employees using this technology; (2) relying on technology that “screens out” individuals with a disability; (3) using software/programs that violate restrictions on medical inquiries. For example, when an employer uses a timed test or a game to access an individual’s skills without offering an alternate version of the same test to individuals that are visually impaired or have compromised dexterity, the employer may have inadvertently engaged in disability discrimination because it has not considered how the disabled individual will perform on this metric.

When new technology is used, the EEOC’s guidance states that informing all applicants of the process for requesting reasonable accommodation under the ADA is a “promising practice” to avoid violating the ADA. Accommodation requests are common where an application process requires completion of an on-line test/assessment. The employer should be prepared to provide alternate ways that the test may be taken for individuals, who have a physical disability, including a “screen reader” or voice recognition technology. 

“Screen out” occurs when a disability prevents a job applicant or employee from meeting—or lowers their performance on—a selection criterion, and the applicant or employee loses a job opportunity as a result. A disability could reduce the accuracy of the assessment, create special circumstances that have not been taken into account how an employee would perform if provided reasonable accommodations, or preventing the individual from participating in the assessment altogether.

The EEOC cautions against the use of on-line personality tests or video interviewing that may require applicants to divulge restricted medical information. An assessment includes “disability-related inquiries” if it asks job applicants or employees questions that are likely to elicit information about a disability or directly asks whether an applicant or employee is an individual with disability. For example, a personality test that requires an individual to rate their own optimism may disclose an employee’s mental illness and may result in the employee receiving an undesirable rating. 

In summary, the use of new technology in hiring and employment will continue to increase in the future. While this technology may lead to a more efficient hiring strategy overall, all employers should be aware of potential ADA issues with new technology and consult their labor attorneys for advice when implementing new technology for hiring.