EEOC Issues Guidance on Employer Use of AI Decision-Making Tools

On May 12, 2022, the Equal Employment Opportunity Commission (EEOC) issued guidelines cautioning employers on the use of digital software, algorithms, and artificial intelligence (AI) to make employment-related decisions. The guidelines highlighted areas that may raise potential Americans with Disabilities Act (ADA) violations. The EEOC recommendations are the first substantive output of the EEOC's Artificial Intelligence and Algorithmic Fairness Initiative, launched in October 2021, which focuses on addressing the growing use by employers of emerging AI technologies.

Background

Employers now have access to a wide variety of computer-based tools to assist in a range of activities, from hiring employees to monitoring work performance and determining pay and promotions. Common AI tools include:

• Algorithm-based resume scanners and software that prioritize applications using certain keywords. These tools can rate job applicants on the basis of key factors.
• Virtual assistants or "chatbots" that can ask job candidates about their qualifications.
• Video interviewing software that can evaluate candidates based on their facial expressions and speech patterns.
• Testing software that can provide "job fit" scores.

Although many employers have implemented these tools in an effort to save time and money, the EEOC cautions that the tools may disadvantage job applicants and employees with disabilities.

Potential ADA Violations

The EEOC's guidance describes three possible ways in which an employer's AI use could violate the ADA:

• An employer's failure to comply with the duty to provide reasonable accommodation (such as alternative testing formats and extended time) due to algorithmic evaluations of applicants and employees;
• An employer's use of algorithmic decision-making tools that intentionally or unintentionally screen out qualified individuals and discriminate against those with disabilities who are able to do the job with reasonable accommodation; and
• An employer's use of tools that fail to comply with the ADA's restrictions on disability-related inquiries and medical examinations.

The guidance clearly states that employers may not rely upon a third-party vendor's representation that an AI tool is "bias free" for validation purposes.

Recommendations for Employers

The EEOC's guidance recommends employers implement the following practices when using software, algorithms, and AI tools:

• 1) Train staff to recognize and promptly process requests for reasonable accommodation.
• 2) Develop alternate means of rating job applicants.
• 3) If an algorithmic decision-making tool is administered by a third party, instruct the entity to promptly forward all requests for accommodation or enter into an agreement for the third party to provide reasonable accommodations.
• 4) Use algorithmic decision-making tools that have been designed to be accessible to individuals with disabilities.
• 5) Inform all job applicants and employees that reasonable accommodations are available and provide clear and accessible instructions for requesting such accommodations.
• 6) Clearly describe the traits the algorithm is designed to access, the method by which those traits are assessed, and the variables and factors that may affect the rating.
• 7) Ensure that the algorithmic decision-making tools only measure abilities or qualifications that are truly necessary for the job.
• 8) Ensure that such abilities and qualifications are measured directly, rather than by way of characteristics or scores that are correlated with those abilities or qualifications.
• 9) Confirm that the tool does not ask questions likely to elicit information about a disability or seek information about an individual's physical or mental impairment or health, unless such inquiries are related to a request for reasonable accommodation.

In addition to the EEOC's guidance, similar regulations regarding AI decision-making tools are being proposed by other regulatory bodies, including California's Fair Employment and Housing Council. DWT's recent advisory on California's draft regulations can be found here.

The EEOC will expand its guidance to address further advancements in the use of AI. DWT will continue to provide updates on this emerging intersection of AI technology and employment law. In the meantime, if you have any questions about the implementation of these newly recommended practices, please feel free to contact DWT's Employment Services Group.