As employers continue to introduce a variety of software, algorithmic and artificial intelligence (“AI”) based tools into the workplace to assist and support employment-based decisions, there is an increasing concern that their use could result in discrimination against certain groups of individuals, including disabled applicants and employees. On May 12, 2022, the United States Equal Employment Opportunity Commission (“EEOC”) issued technical guidance addressing how an employer’s use of software, algorithmic decision-making tools and AI to assist them in hiring workers, monitoring worker performance, determining pay or promotions, and establishing the terms and conditions of employment could violate the Americans with Disabilities Act (“ADA”). It is worth noting that the Department of Justice also issued similar technical guidance for state and local government employers.
The EEOC guidance is the most recent installment in the EEOC’s “Initiative on Artificial Intelligence and Algorithmic Fairness,” which it announced on October 28, 2021 and which examines how algorithmic decision-making tools and AI are fundamentally changing employment decisions. Echoing concerns of emerging laws such as New York City’s recent passage of a law regulating the use of automated employment decision-making tools, the EEOC’s recent action provides critical guidance that employers should note when implementing algorithmic decision-making tools and AI in workplace decisions.
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