The United States Department of Justice (DoJ) has explained how algorithms and artificial intelligence can lead to disability discrimination in hiring. The DoJ enforces disability discrimination laws with respect to state and local government employers. While the Equal Employment Opportunity Commission (EEOC) enforces them with respect to employers in the private sector and federal government. The obligation to avoid disability discrimination in employment applies to both public and private employers.
Americans With Disabilities Act (ADA)
The ADA bars discrimination against people with many different types of disabilities such as:
- Cerebral Palsy
- Mobility disabilities
- Intellectual disabilities
- Mental health disabilities
When designing or choosing hiring technologies, employers must consider how their tools could impact different disabilities. For example, a state transportation agency that designs its hiring technology to avoid discriminating against blind applicants may still violate the ADA if its technology discriminates against applicants with autism or epilepsy.
Employers are increasingly using hiring technologies to help with the selection of new employees. The technology may be used to:
- Show job advertisements to targeted groups
- Decide if an applicant meets job qualifications
- Hold online video interviews of applicants
- Use computer-based tests to measure an applicant’s skills or abilities
- Score applicants’ resumes
While this may be useful to some employers it might directly discriminate against certain groups.
An employer may not be meaning to discriminate when using a hiring technology, but it may still lead to unlawful discrimination. Some hiring technologies try to predict who will be a good employee by comparing them to current employees. However, people with disabilities have historically been excluded from many jobs and may not be a part of the employers’ current staff. This would be considered unlawful discrimination.
A more obvious example would be a technology that unfairly screens out a qualified candidate that has a disability. Qualification standards should be job-related and consistent with business necessity. Employers must provide requested reasonable accommodations that will allow applicants or employees with disabilities to meet those standards. The only exception would be if doing so would cause undue hardship.
Some employers will test out hiring technologies to see how they impact certain groups such as racial minorities. Any employer that may try to do the same but for people with disabilities must understand that disabilities impact individuals in different ways and such an evaluation will not account for each individual case.
Any technology used must evaluate job skills. A technology may use an online interactive game or personality assessment which feeds into an algorithm. Under the ADA, any tests or games must measure only the relevant skills of an applicant. It must not account for an applicant’s impaired sensory, manual, or speaking skills. An example would be an applicant with a vision impairment may not be passed over because they do poorly on a computer-based test that requires them to see even though they are able to do the job.
If a test or technology eliminates someone because of their disability when that person can actually do the job, an employer has the responsibility to use an accessible test. A test that measures job skills, not disability. If they cannot provide an alternative test, then they need to make other adjustments to the hiring process to give the qualified candidate a fair chance and not exclude them because of their disability.
Employers must also ensure that they do not unlawfully seek medical or disability-related information or conduct medical exams through use of hiring technologies.