Many employers use computer-based technology such as artificial intelligence, software, and algorithms throughout the hiring and employment process. Examples of the types of tools used in the hiring process include resume-screening software, chatbots, and digitized interviews. These tools have replaced many basic human resource tasks in employment recruitment and have streamlined the hiring process.
While such technology-enabled employment selection promotes efficiency and cost-savings, employers must ensure that its use is not in violation of the Americans with Disabilities Act (“ADA”). The ADA is a federal civil rights law that prohibits employers, employment agencies, labor organizations, and joint labor-management committees with 15 or more employees from discriminating based on disability.
If a computer-based tool improperly “screens out” or rejects an applicant for employment who has a disability, the employer may be in violation of the ADA. This is the case whether or not the rejection was intentional or unintentional. For instance, digitized interviews use software that assesses an applicant’s tone of voice, speech patterns, and facial movements to evaluate the applicant’s fit for the role. However, if the applicant has a speech impediment, the software may not evaluate the applicant effectively and may automatically reject the applicant due to a low evaluation rating.
Employers should be mindful of tools that indicate they are “bias free” as this designation may be misleading. “Bias free” tools typically mean that steps have been taken to prevent discrimination under Title VII, based on race, sex, national origin, color, or religion. However, the steps required to prevent disability discrimination are unique based on the disability and must be distinguished from the steps required to prevent Title VII discrimination.
Employers who choose to use AI in the hiring process can and should take steps to reduce the chances of prejudicing individuals with disabilities. For example:
- Employers should develop and select tools that measure abilities or qualifications that are truly necessary for the job, including for individuals who are entitled to a reasonable accommodation.
- Employers must provide a reasonable accommodation to qualified individuals with disabilities, unless doing so would cause undue hardship. Therefore, employers must provide clear and accessible instructions for requesting such accommodation to those who are being evaluated. The ADA permits employers to request reasonable medical documentation in support of a request for reasonable accommodation, when necessary.
- Employers should clearly describe, in accessible formats, what traits the AI will be assessing and how, so applicants will better understand when they may need to request a reasonable accommodation.
- Decision-making tools that rate an applicant’s ability by measuring the similarity between an applicant’s personality and the typical personality for successful individuals holding the open position should be avoided.
- Prior to purchasing employment technology that is administered by an outside vendor, employers should request that the vendor forward all requests for accommodations to be processed by the employer in accordance with the ADA, or enter into an agreement with the outside vendor to provide reasonable accommodations on the employer’s behalf, in accordance with the ADA. It is important to note that any potential liability extends to the employer even if the tool is administered and/or developed by an outside vendor.
Employers must be able to navigate the pitfalls of employment selection technology and ensure that these tools are used to enhance the hiring process to build an inclusive and accessible workforce.
For further information or guidance on how this law may affect your business, please contact Tyleana K. Venable at firstname.lastname@example.org.
 42 USC 12101 et seq.