Artificial intelligence (AI) can help streamline business processes making workers more efficient and driving costs down for the consumer. What happens, though, when an employer uses AI in hiring decisions? What happens if AI begins to screen out individuals with disabilities without going through an interactive process to see if those disabled individuals could have successfully performed the essential functions of the position with reasonable accommodation? On May 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance to help employers answer some of these questions.

How Could an Employer’s Use of AI Violate the ADA?

Though there are innumerable examples of how an employer could run afoul of the ADA through its use of AI, two illustrative examples are disability-related inquiries and an employer’s failure to provide a reasonable accommodation.

Disability-Related Inquiries and Medical Examinations

A disability-related inquiry is an inquiry that asks job applicants or employees questions that are likely to elicit information about a disability or directly asks whether an applicant or employee is an individual with a disability. This inquiry can qualify as a “medical examination” if it seeks information about an individual’s physical or mental impairments or health.

The EEOC updated guidance clarifies that an algorithmic decision-making tool used to identify an applicant’s medical conditions would violate these restrictions if it were administered prior to a conditional offer of employment. This is because employers are not permitted to require medical examinations or make disability-related inquiries unless such examination or inquiry is shown to be job-related and consistent with business necessity.

For example, if a personality test asks questions about optimism, and if someone with Major Depressive Disorder (MDD) answers those questions negatively and loses an employment opportunity as a result, the test may screen out the applicant because of MDD. Such screenouts may be unlawful if the individual screened out can perform the essential functions of the job with or without reasonable accommodation.

Failure to Provide a Reasonable Accommodation

Put simply, if the employer is utilizing an algorithmic decision-making tool, then the employer must provide a reasonable accommodation to applicants and current employees if those applicants or employees would otherwise not be rated fairly or accurately by the AI tool. For example, a job applicant who has limited manual dexterity because of a disability may report that they would have difficulty taking a knowledge test that requires the use of a keyboard, trackpad, or other manual input devices. Especially if the responses are timed, this kind of test would not accurately measure this particular applicant’s knowledge.

Best Practices for Employers Who Utilize AI

• Inform applicants of their rights to a reasonable accommodation up front. This includes during the application, interview, hiring, and onboarding process.
• Engage in an interactive process with applicants and employees when they request accommodations.
• Objectively evaluate the usage of AI as a tool and potential opportunity for ADA noncompliance.
• Ensure that any medical examinations or disability-related inquiries are job-related and consistent with business necessity.
• Ensure that mandatory “yes” answers or disqualifying “no” answers are truly mandatory or disqualifying.

If you have questions about this guidance or ADA compliance, please contact your Parker Poe Employment & Benefits attorney.