The EEOC recently issued new guidance aimed at employers to ensure that any hiring tools based on algorithms or artificial intelligence (AI) do not negatively impact applicants with disabilities.

Some larger employers use tools like automated “chatbots” when applicants are perusing their website for information or testing and monitoring software to measure desired characteristics or skills. The EEOC’s guidance warns of three common applications of these tools that may violate the Americans with Disabilities Act:

• Failing to provide a reasonable accommodation necessary for an applicant to be evaluated fairly by an algorithm or AI-based tool.
• Using a decision-making tool that “screens out” an individual with a disability by preventing the applicant from meeting selection criteria due to a disability.
• Using a decision-making tool that incorporates disability-related inquiries or medical examinations.

Employers are responsible for vetting potential bias in AI-based hiring tools—even if the software is provided by a vendor.

The guidance provides recommendations including informing applicants that reasonable accommodations are available and providing alternative testing options.

The EEOC recently brought a case alleging that a company’s discriminatory hiring software was programmed to automatically reject applicants over a certain age. This case signals the EEOC’s increased scrutiny of these tools and their disparate on applicants who fall into certain protected categories.

So if you’re a business that is using or contemplating using some of these tools to streamline your hiring practices, be warned that sometimes shortcuts can invite lawsuits.  For questions about your business’s hiring tools, contact Laura Rubenstein at LRubenstein@RKWlawgroup.com.