On May 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) issued a “Technical Assistance” (TA) document addressing compliance with ADA requirements and agency policy when using AI and other software to hire and assess employees. The agency also published a short “Tips for Workers” summary of this guidance. Neither of these documents has the force or effect of law, nor are they binding on employers; as the accompanying press release notes, this guidance is meant to be educational, “so that people with disabilities know their rights and employers can take action to avoid discrimination.” Nevertheless, we see several take-aways regarding the Commission’s likely expectations and areas of focus when regulating the use of such tools in hiring or assessing employees:

• Accessibility: Employers should account for the fact that on-line/interactive tools may not be easily accessed or used by those with visual, auditory or other impairment.
• Accommodation: Barring undue hardship, employers should provide alternatives to the use or application of these tools if an individual’s disability renders the use of the tool more difficult or the accuracy of the tool’s assessment less reliable.
• Accommodation, II: Beyond providing reasonable accommodations in accessing/using these tools, employers should ensure that the tools assess an individual in the context of any reasonable accommodation they are likely to be given when performing their job.
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