This is the last blog in the series on the EEOC’s Technical Guidance: The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees. The Guidance ends with the reminder that employers utilizing these Automated Employment Decision-Making Tools (AEDT) can violate the Americans with Disabilities Act (ADA) if the tools (1) pose Disability-Related Inquiries, or (2) conduct a Medical Examination.
The EEOC suggested that the liability flowing from the use of these tools rests with the employers who utilize such tools - not the developers. This makes sense, as the ADA applies to “covered entities,” and a developer of a tool is not a covered entity under the statute. With that being said, prudent developers will design these tools with the ADA in mind. While liability may rest with the employer, no vendor wants its name included in a complaint on the public docket, not to mention that it is not exactly a wise marketing strategy to develop tools that can expose their users to ADA liability.
General ADA Prohibition
The ADA is clear:
A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
Prohibition Applies to Employers and Labor Organizations
As...
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