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Algorithms, AI, and the ADA

Gavel to Gavel

published in The Journal Record | May 26, 2022

On May 12, the Equal Employment Opportunity Commission and the U.S. Department of Justice issued guidance to caution employers about using artificial intelligence (AI) and software tools to make employment decisions. The guidance, titled “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees,” warns that using these tools without safeguards could result in an Americans with Disabilities Act violation.

The ADA requires that people with disabilities have full access to public and private services and facilities. It also bans employers from discriminating on the basis of disabilities, and requires that they provide reasonable accommodations to employees with disabilities to enable them to do a job.

Companies increasingly rely on software and AI to monitor employees’ locations, productivity, and performance, such as surveillance monitoring that tracks employees’ “time on task.” Employers may then use this information to make pay, disciplinary, and termination decisions. The guidance warns employers that doing so may result in discrimination against employees with disabilities.

The EEOC advises that employers should not be using algorithms, software or AI to make employment decisions without giving employees a chance to request reasonable accommodations. Here’s why: Software and AI are designed to provide information based on preset specifications of the average or ideal worker. However, employees with disabilities may not work under typical conditions if they are utilizing an accommodation.

To use these tools without running afoul of the law, employers should train their HR personnel, managers and supervisors to recognize and respond to requests for accommodations from employees, even when the request is informal. This could include an employee’s requests to take a test in an alternative format, to be assessed in another way, or to be allowed to spend extra “time off task” due to a medical condition, for example. Employers should also ensure they use software that has been tested by users with disabilities. Other tips for staying in compliance include providing clear instructions to employees for requesting accommodations and avoiding pre-employment screening for traits that may reveal disabilities.

Employers would do well to remember that employees are humans, and sometimes decisions about humans need to be made by humans, not by computers. Metrics tracked by computers should be just one piece of the puzzle when evaluating employees’ performance.

This article appeared in the May 26, 2022, issue of The Journal Record. It is reproduced with permission from the publisher. © The Journal Record Publishing Co.