Is your HR technology AI discriminatory?

“We are sounding an alarm regarding the dangers tied to blind reliance on AI and other technologies that we are seeing increasingly used by employers.”

-   Kristen Clarke, DOJ assistant attorney general, during a press call

EEOC and DOJ Issue Guidance on the ADA and the Use of Artificial Intelligence (AI), Algorithms, and Software

The EEOC and DOJ recently issued new guidance about how employers’ use of artificial intelligence (AI) may result in unlawful disability discrimination under the Americans with Disabilities Act. The agencies warned that these algorithms can be used to make decisions based on protected characteristics including race or gender, but they also need further accountability for whose privacy is being impacted by this type of data-driven decision-making process. The use of algorithms in hiring, monitoring performances, and determining wages can discriminate against people with disabilities.

The U.S Equal Employment Opportunity Commission (EEOC) has released new guidelines that highlight how employment software tools might violate the Americans Disabilities Act, such as: 

  • The employer does not provide a reasonable accommodation necessary for an individual to be rated fairly and accurately by software.
  • The software screens out an individual with a disability, even though the individual can do the job with reasonable accommodation.
  • The software makes disability-related inquiries or includes medical examinations.

 DOJ Guidance

The Department of Justice has provided guidelines to employers on how they should be conducting themselves when it comes time for them to use software tools in order not to discriminate against employees who possess certain disabilities. The DOJ’s guidance provides examples and clarification about what type of accommodations may need to be made available through these technologies, as well explaining which ones aren’t required by law but are still welcomed additions. The Bureau of Labor Statistics’ April data revealed a labor force participation rate of only 23.1% for people with a disability.

Employer Takeaway

Employers should review this guidance and protect themselves from ADA violations by making sure they are not at risk. Contact us today with any questions you may have about how we can help your organization’s technology compliance practices.

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