November 12, 2022

How the Use of Artificial Intelligence in Employment Decisions Could Violate the ADA

As companies continue to use Artificial Intelligence (AI)-powered technologies to make critical employment decisions, there is a growing concern that their use could violate the Americans with Disabilities Act (ADA).

In May 2022, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) issued technical guidelines highlighting how employers' use of AI decision-making tools could lead to discrimination against employees with disabilities.

If you are disabled and think that an employer or their technology has violated the Americans with Disabilities Act, you should consult an ADA lawyer to explore your legal options.

Artificial Intelligence Tools Designed to Assess Job Applicants and Employees

The EEOC guidance focuses on three primary technological tools:

Software: a set of information technology programs that instruct a computer to execute certain functions and tasks. For example, in employment, these instructions or procedures can include hiring software, video interviewing software, worker management software, automatic resume-screening software, and chatbots for hiring and workflow software.

Algorithms: a series of instructions or rules a computer follows to execute some tasks. In the context of the EEOC, algorithms refer to the instructions integrated into human resources software. Its purpose? To enable employers to process data and make critical decisions regarding job applicants and workers at different stages of employment, such as hiring, termination, promotion, evaluation, and performance.

Artificial Intelligence: AI technologies include computer vision, machine learning, natural language understanding and processing, and intelligent decision support systems. Some employers use AI when creating algorithms to help rate, evaluate, and make other decisions regarding job applicants and employees.

According to the EEOC, employers can rely on various types of software (which may include AI) that utilize algorithmic decision-making in different stages of their employment process, including:

  • Employee tracking software that evaluates and rates employees based on specific factors.
  • Resume scanners that sort applications using specific keywords.
  • Video interviewing software that reviews applicants using their patterns and facial expressions.
  • Chatbots that ask candidates about their qualifications and dismiss applications that do not meet requirements.
  • Testing software that rates job applicants or workers based on their personalities, cognitive skills, and aptitudes.

Potential Ways ADA Violations Can Occur

The EEOC acknowledges that an employer's use of computer-based decision-making tools could result in ADA violations, including:

  • Failing to provide appropriate accommodation necessary for a job applicant or employee to be evaluated or rated fairly by the algorithm.
  • Relying on an algorithm without proper measures that intentionally or unintentionally prevent a job applicant with a disability from meeting the qualifications of a job opportunity.
  • Using an algorithm decision-making tool that breaches the ADA restrictions on disability-related inquiries and medical examinations.

Get Help from Our New York ADA Lawyers

If an employer using artificial intelligence has discriminated against you or a loved one, you have a right to seek legal recourse. Our ADA lawyers serve clients across New York and can help you fight for justice. 

Contact us online or call our office at (212) 595-6200 to get assistance from our experienced New York ADA lawyers.

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