The EEOC recently issued long awaited guidance on how an employer’s use of software, algorithms, and artificial intelligence will be treated by the Commission under the Americans with Disabilities Act (ADA). In issuing this guidance, the Commission focused on employers administering software that uses algorithmic decision-making or artificial intelligence in making employment decisions before and during employment. The Commission outlined three general areas in which the use of such technology may violate the ADA: (1) an employer not providing a reasonable accommodation that is necessary for a job applicant or employee to be rated fairly and accurately by the technology ; (2) an employer administering the technology to “screen out” job applicants; and (3) an employer using the technology to make disability related inquiries and medical examinations.
Reasonable Accommodations. Generally speaking, under the ADA, an employer must grant an applicant or employee reasonable accommodations that would allow the individual to perform the essential functions of the job. For reasonable accommodations, the EEOC has flagged an employer’s use of algorithmic decision-making tools to assess job applicants or employees as a potential area of concern under the ADA. Indeed, if an applicant or employee explains to the employer that a medical condition would make it difficult to use the software, the individual has requested a reasonable accommodation requiring the employer to engage in the...
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