Employers are increasingly turning to artificial intelligence—or software designed to simulate human intelligence—to help recruit and hire new employees. Some companies have already begun implementing this technology by, for example, using resume-screening software to verify applicants’ credentials and by using artificially intelligent face and voice monitoring systems to track candidates’ body language and tone during interviews.
By removing humans from part of the hiring process, employers often hope that they are also removing human prejudices and discrimination from their decision-making as well. That may not always be the case. Just this month, the Equal Employment Opportunity Commission (“EEOC”) issued guidance, warning that the use of artificial intelligence in hiring decisions “may disadvantage job applicants and employees with disabilities.”
As the EEOC explained, the Americans with Disabilities Act (“ADA”) prohibits employers from discriminating against employees on the basis of disability. It also generally requires employers to provide reasonable accommodations to permit an applicant with a disability to apply for a job.
The EEOC warned that overreliance on technology during the hiring process may result in unintended violations of the ADA. For example, if an employer uses an automated software that screens out all applicants who have had significant gaps in their employment history, the software could be inadvertently excluding employees who stopped working to undergo treatment for a disability. Similarly, an employer that uses video interviewing software to analyze applicants’ speech patterns may unintentionally place applicants with speech impediments at a disadvantage.
Notably, the EEOC further warned that employers may be liable for discriminatory results caused by automated software, even if the software was designed, implemented, and administered by an outside vendor.
The EEOC therefore provided guidance to employers who intend to use automated software when making employment decisions. According to the EEOC, employers should:
- Determine whether their automated software was designed with individuals with disabilities in mind, and if an employee is expected to interface with the software, make the interface accessible to individuals with disabilities or present alternative interfacing formats for those with disabilities;
- Provide all applicants information about the automated software—including information about the traits/characteristics that the software assesses—and provide all applicants with instructions for requesting reasonable accommodations;
- Ensure that the automated software only screens/assesses candidates based on the abilities and qualifications that are truly necessary for the job.
The EEOC’s guidance regarding the ADA comes just a few months after it launched an initiative in October 2021 designed to “ensure that artificial intelligence and…and other emerging tools used in hiring and other employment decisions comply with federal civil rights laws.” Employers can therefore expect that the EEOC will publish further guidance regarding artificial intelligence and other federal employment laws.
For more information about the EEOC’s guidance or to seek counsel from our employment law group, please reach out to request a consultation or call us at 216-696-1422.
