U.S. Agencies Issue Guidance On Employer Use of AI

This month, the U.S. Equal Employment Opportunity Commission and the Department of Justice (DOJ) issued guidance documents that address when and how employers may lawfully use of algorithms and artificial intelligence under the Americans with Disabilities Act. The documents identify three primary concerns:

• The fact that employers should have a process in place to provide reasonable accommodations when using algorithmic decision-making tools;
• That, without proper safeguards, workers with disabilities may be “screened out” from consideration in a job or promotion even if they can do the job with or without a reasonable accommodation; and
• If the use of AI or algorithms results in applicants or employees having to provide information about disabilities or medical conditions, it may result in prohibited disability-related inquiries or medical exams.

The DOJ’s guidance document, available here, emphasized that employers must ensure hiring technologies measure only the relevant skills and abilities of an applicant and not the applicant’s impaired sensory, manual, or speaking skills that the tests do not seek to measure.

The EEOC also provided a Tips for Workers document, available here, that is designed for use by employees and job applicants. This document explains how individual applicants can identify and raise concerns.