As the use of artificial intelligence wedges its way into every side of business and culture, government regulation is (perhaps too slowly) moving to build legal boundaries around its use.
On May 12, 2022, the Equal Employment Opportunity Commission issued a new comprehensive “technical assistance” guidance entitled The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees. The guidance, which covers a number of areas, defines algorithms and artificial intelligence (AI); gives examples of how AI is used by employers; answers the question of employer liability for use of vendor AI tools; requires reasonable accommodation in deploying AI in this context; addresses the “screen out” problem of AI rejecting candidates who would otherwise qualify for the job with reasonable accommodation; requires limitations to avoid asking disability-related and medical questions; promotes “promising practices” for employers, job applicants, and employees alike; and gives many specific examples of disability discrimination pitfalls in using AI tools.
Here are some primary takeaways from the new guidance:
Risk Exposure for Vendor Software. Employers who deploy AI-driven decision-making tools to evaluate employees or job applicants may be liable under the Americans with Disabilities Act (ADA) for the shortcomings of that...
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