DOJ and EEOC Caution that Employer Use of AI Tools Can Violate the ADA

On May 12, the Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) each released a technical assistance document about potential disability discrimination when employers use artificial intelligence (AI) and other software tools to make employment decisions. Agencies should review these new guidance documents and adjust their practices concerning the use of algorithmic decision-making tools to ensure they are in compliance with the law as it relates to fairly accommodating persons with disabilities.

The DOJ guidance document, Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring, provides a broad overview of rights and responsibilities employers have under the Americans with Disabiliies Act (ADA) when using algorithmic decision-making tools, including when an employer must provide a reasonable accommodation.

The EEOC’s technical assistance document, the Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees, outlines issues that employers should consider to ensure that the use of AI software tools in employment do not disadvantage workers or applicants with disabilities in ways that violate the ADA. The document highlights promising practices to reduce the likelihood of disability discrimination.The EEOC’s technical assistance document is part of its Artificial Intelligence and Algorithmic Fairness Initiative to ensure that the use of software, including artificial intelligence (AI), used in employment decisions complies with the federal civil rights laws that the EEOC enforces.