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EEOC Issues New Guidance On Disability Bias And Algorithmic Employment Assessments – Employee Rights/ Labour Relations


The Equal Employment Opportunity Commission (EEOC) recently
released guidance to help private sector employers
avoid disability discrimination when using algorithms to assess
employees and applicants.1 The guidance explains the
ways in which software that relies on algorithmic decision-making
can run afoul of Americans with Disabilities Act (ADA)
requirements. The guidance also includes “promising
practices” to help employers avoid ADA violations when using
algorithms and artificial intelligence (AI) tools in the employment
selection process.

Background

In October 2021, the EEOC announced an initiative focused on
ensuring that employers using AI and algorithmic tools comply with
federal civil rights law (read our previous post on the initiative
here).

Title I of the ADA prohibits employers, employment agencies,
labor organizations and joint labor-management committees with at
least 15 employees from discriminating on the basis of
disability.2 Title I also imposes an affirmative
obligation on employers to provide reasonable accommodations to
applicants and employees during the hiring and promotion
process.

In the new guidance, the EEOC explains employers’
responsibilities when using computer-based and online assessments,
including those administered by third parties, to ensure that the
assessments are not resulting in discrimination against persons
with disabilities. The EEOC also clarifies in the new guidance that
algorithmic decision-making may still violate the ADA even though
an assessment has been properly validated under the Uniform
Guidelines on Employee Selection Procedures (UGESP), which applies
only to compliance with of the Civil Rights Act (Title VII) and not
the ADA.3

What Kinds of Assessments are Covered by the Guidance?

The EEOC’s guidance covers software, algorithms and AI when
used in connection with making employment decisions.
“Software” broadly includes programs and applications
that perform a given task or function. “Algorithms” means
a type of software that processes data and evaluates, rates and
makes employment decisions by applying a set of instructions.
“AI,” which is also referred to as machine learning,
develops algorithms based on the computer’s own analysis of
data to make predictions about what will make an applicant a
successful employee, and then decides the criteria that should be
used to assess applicants and employees based upon those
predictions. Examples of the kinds of assessments and tools covered
by the EEOC’s guidance include:

  • Screening applications with resume scanning software that
    prioritizes certain keywords.

  • Online interviews with virtual assistants or
    “chatbots” that screen for pre-determined candidate
    responses.

  • Computerized tests that measure applicants’ abilities,
    personalities, traits or characteristics, including through the use
    of games.

  • Video interviewing that evaluates candidates based on their
    facial expressions or speech patterns.

How can Algorithmic Decision-Making Violate the ADA?

The guidance explains three common ways that algorithmic
decision-making might violate the ADA: (i) failing to provide a
reasonable accommodation in the assessment process that would have
allowed a job applicant or employee to be evaluated accurately and
fairly; (ii) loss of a job opportunity because an individual with
disability, who is able to do the job with a reasonable
accommodation, is screened out by the assessment; and (iii)
including questions in an assessment that are considered
disability-related inquiries or medical exams under circumstances
prohibited by the ADA.4

Reasonable Accommodation and Algorithmic Decision-Making
Tools

As in other contexts, the EEOC’s guidance explains that
employers must provide reasonable accommodations when a medical
condition may impact an applicant’s or employee’s
performance on an assessment. Reasonable accommodations in this
context could include extended time to take the assessment, or an
alternative version of the assessment that is compatible with
accessible technology. The guidance gives as an example: an
applicant with limited manual dexterity may have difficulty with a
knowledge test that requires the use of a keyboard, trackpad or
other manual input device that would not accurately measure that
applicant’s knowledge. An employer might reasonably accommodate
the applicant by allowing them to provide responses orally, rather
than manually.5

For non-obvious disabilities, employers may request supporting
medical documentation, and if the documentation shows that a
disability “might make the test more difficult to take”
or “might reduce the accuracy of the assessment,” the
guidance states that employers must provide an
alternative means of assessing the candidate absent a showing of
undue hardship (defined as involving significant difficulty or
expense).6The guidance also confirms that the reasonable
accommodation obligation extends not only to employers, but also to
third-party administrators acting on the employers’
behalf.7

As a “promising practice,” the EEOC suggests that
employers using algorithmic decision-making tools inform applicants
up front how they will be evaluated and that reasonable
accommodations are available for persons with disabilities,
including clear and accessible instructions on how to request an
accommodation. The guidance specifically recommends that employers
tell candidates, in plain language, the traits that are being
evaluated by an assessment, the method of assessment and any
variables or factors that may affect an applicant’s
score.8 While the EEOC’s guidance recommends this
level of transparency to candidates, the ADA does not require it.
New York City, however, recently enacted a law that will take
effect in 2023 that will require such disclosures when employers
use algorithms and AI in the selection process (read here for more about this law).

Loss of Job Opportunity due to Algorithmic Decision-Making
Tools

The ADA may be violated when a disabled candidate who is capable
of doing the job with or without an accommodation is “screened
out” from consideration because their disability prevents them
from meeting a selection criteria or performing well on the
assessment. As an example, the EEOC explains that a person’s
disability may prevent the algorithmic decision-making tool from
measuring what it is intended to measure, such as a candidate with
a speech impediment being assessed by a speech pattern
tool.9 If the candidate lost a job opportunity due to a
poor score on the assessment, then the candidate may have
effectively been screened out because of the speech impediment and
not the candidate’s ability to do the job.

The new guidance also distinguishes ADA obligations when using
assessments from Title VII’s obligations. Under Title VII’s
disparate impact provisions, when an assessment has a
disproportionate negative impact on a particular gender, race or
ethnicity, an employer must prove the tests is job-related and
consistent with business necessity.10 Employers can
establish job-relatedness and business necessity under Title VII by
“validating” a test in accordance with the UGESP.
However, the EEOC explains that the UGESP do not apply under the
ADA, and even a tool that has been properly validated may still be
inaccurate when applied to a particular individual with a
disability. And although the ADA also requires employers to
establish job relatedness and business necessity to justify using
an assessment that tends to screen out individuals with
disabilities, the EEOC notes that each disability is unique and
different steps may be required to make this showing, beyond those
taken to address other forms of discrimination.

The new guidance specifically addresses personality tests, which
have become increasingly popular among employers because such
assessments have been found to correlate with successful job
performance while resulting in far less adverse impact under Title
VII than traditional cognitive tests. Under the ADA, however,
individuals with disabilities such as post-traumatic stress
disorder (PTSD) may perform poorly on personality assessments
despite being able to perform the job successfully, even sometimes
without any accommodation. The EEOC suggests that employers
determine whether the traits or characteristics measured by a
personality test correlate with certain disabilities, and take
affirmative steps to ensure that individuals with autism or
cognitive, or mental-health related disabilities are not being
inaccurately assessed and unlawfully screened out.11 One
way to do so, according to the guidance, is to provide as much
information about the tool as possible in advance, and inform
candidates that reasonable accommodations, including alternative
means of assessment, are available to persons with disabilities.
Alternatively, as a “promising practice,” the EEOC
recommends using only tools that measure abilities or
qualifications that are truly necessary for the job.

Algorithmic Decision-Making and Disability-Related Inquiries
and Medical Exams

The ADA prohibits employers from making disability-related
inquiries or conducting medical exams before making a conditional
offer of employment. The new guidance warns employers that certain
questions on personality tests, including those that use
algorithmic decision-making, may violate the ADA if the questions
are likely to elicit information about a disability or medical
diagnosis. As an example, the EEOC explains that asking candidates
about whether friends would describe them as optimistic is
permissible because it is not a question likely to elicit
information about a disability.12 However, if a
candidate with major depressive disorder is screened out from
employment based on that question, the ADA could be violated if the
candidate can perform essential job functions with or without an
accommodation.

Actions Employers Can Take to Comply

To ensure their AI and algorithmic tools are ADA compliant,
employers can take the following actions:

Prevent unlawful screening: Screening of a candidate
with disabilities is unlawful if the screened individual would have
been able to perform the essential function of the job with
reasonable accommodation if an accommodation is legally
required.13 Companies should examine their hiring tools
to ensure algorithms do not unlawfully screen out individuals with
disabilities.

Use accessible design: Companies should ensure that
their AI and algorithmic tools are accessible to individuals with
as many different kinds of disabilities as possible. This will
minimize the odds of unfairly disadvantage to people with
disabilities.

Make reasonable accommodations: A reasonable
accommodation is a “change in the way things are done that
helps a job applicant or employee with a disability apply for a
job, do a job, or enjoy equal benefits and privileges of
employment.”rdquo;14 Companies should make it clear
and easy for job applicants to request reasonable accommodations.
Requesting an accommodation should not decrease an applicant’s
chances of being hired.

Screen vendors properly: Companies should make sure
that their technology vendors are in compliance with the ADA.
Employers may be held responsible for the actions of software
vendors contracted to perform hiring tests, even if the employer
was unaware that a job applicant had reported a problem to the
vendor.15

Keep requests confidential: Under the ADA, employers
must keep all medical information related to accommodation requests
confidential, and must store such information separately from the
requestor’s personnel file.16Companies processing
accommodations requests must remember to keep the associated
dialogues confidential and store related information in a
confidential “medical” file.

Takeaway

Emerging technologies have great potential to help employers
streamline the often-laborious hiring process. Yet even the most
highly advanced AI and well-built algorithmic tools can raise
thorny discrimination issues. Companies should preserve the value
of their new hiring technology by diligently monitoring those
technologies’ applications for ADA compliance.

Footnotes

1. U.S. Department of Justice (DOJ), which enforces the
ADA against state and local government employers, published a
separate
guidance
document at the same time as the EEOC.

2. 29 C.F.R. § 1630.4.

3. Equal Employment Opportunity Comm’n, The
Americans with Disabilities Act and the Use of Software,
Algorithms, and Artificial Intelligence to Assess Job Applicants
and Employees
, technical assistance document (May 12, 2022),
hereinafter “Guidance”, available at https://www.eeoc.gov/laws/guidance/americans-disabilities-act-and-use-software-algorithms-and-artificial-intelligence.

4. Id; 29 C.F.R. § 1630.14.

5. Id.

6. Id.

7. Id.

8. Id.

9. Id.

10. Title VII, 42 U.S.C. § 2000e-2(k).

11. Guidance, at 1.

12. Id.

13. Id.

14. Id.

15. Id.

16. Id; 29 C.F.R. §
1630.14(b)(1).

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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