Recent EEOC ADA Guidance for Employers Using Artificial Intelligence and Software Algorithms

Recent EEOC guidance discusses best practices for employers with 15 or more employees using artificial intelligence, algorithms and software (“computer-based tools”) to assess prospective and current employees to comply with the Americans with Disabilities Act (ADA)’s requirements. 

For instance, the EEOC’s guidance encourages employers to consider how computer-based tools rating a prospective or current employee’s speech or vision, facial expressions, using game-like assessments or not including assistive technology each may impermissibly screen out prospective or current employees based on their disability (by assessing disability related trait(s) and not the individual’s ability to perform essential job functions with or without reasonable accommodations).

The guidance encourages employers to consider whether computer-based tools used by the employer (or an agency acting on their behalf):

• Screens out (intentionally or unintentionally) employees or prospective employees who may be able to perform essential job duties with or without reasonable accommodations.
• Asks disability-related questions or medical examinations which may be impermissible, and
• Whether reasonable accommodations may be necessary to fairly evaluate the prospective or current employee with a disability using the computer-based tool.   

The guidance discusses EEOC nonbinding “best practices” for employers including:

• Providing employees and applicants notice and instruction of their right to request reasonable accommodations under the ADA prior to using a computer-based tool.
• Employers may need to modify the computer-based tool or provide alternative assessments as a reasonable accommodation.
• Considering how the tool evaluates individuals with disabilities including sharing what traits or characteristics the tool is designed to assess, how the assessment occurs and what disabilities (if any) may lower results or may screen out individuals.
• Assessing if the tool impermissibly makes “disability-related inquiries” or prior to employment “conducts a medical examination” which may identify those who may have disabilities or asks questions about the individual’s health or physical or mental impairments (which may lead to an impermissible inference or identification of individuals who may have a disability).  

If you have questions about this or any other workforce issue, please contact your relationship attorney or one of Honigman’s Labor and Employment attorneys.