Using Artificial Intelligence In The Hiring Process? Consider These ADA Pitfalls

• Published date: 22 March 2023
• Subject Matter: Employment and HR, Technology, Discrimination, Disability & Sexual Harassment, New Technology
• Law Firm: Stanton Law
• Author: Amy Thomson

The use of artificial intelligence, or AI, is becoming a fact of life. For companies, technology has progressed to simplify processes, increase convenience, lower costs of doing business, and generally make our work lives easier. But this ease may come with legal pitfalls. AI is being used across human resources to select new employees, monitor employee performance, and determine compensation or promotions. However, employers who use it in this way and do not take into consideration how the AI they are using may negatively impact the candidates and employees who may have difficulty navigating the software could be in violation of the Americans with Disabilities Act ("ADA").

We'll focus on the hiring process. Here are some ways to ensure you remain compliant:

Test Only for Required Skills and Abilities

On May 12, 2022, the EEOC and DOJ released documents demonstrating how an employer's use of AI and other technological tools could violate the ADA. The DOJ's guidance lays out the possible violations in the various steps of the hiring process. For example, companies may use technology to advertise positions, decide if an applicant meets certain job qualifications by scoring an applicant's resume, hold online interviews of applicants, and use computer-based tests to measure an applicant's skills and abilities. Many of these technologies use algorithms or AI to complete these tasks and make evaluations and recommendations that have historically been done by a person, such as recognizing facial expressions during a video interview. The problem is that the use of AI may result in unlawful, discrimination if it unfairly screens out qualified individuals with disabilities.

Under the ADA, employers must ensure that any tests measure only the relevant skills and abilities of an applicant. For example, a visually-impaired individual may do poorly on a computer-based test that requires them to see, even though vision is not necessary for the applicant to otherwise do the job. Therefore, an employer should only use tests that measure the applicant's skills that are required to do the job; or make other adjustments to the hiring process so that qualified individuals are not eliminated because of a disability. Additionally, employers must ensure that the software they use does not seek medical or disability-related information outside of information required to provide a reasonable accommodation.

Provide Reasonable Accommodation

Employers must provide requested...