Employers’ use of artificial intelligence (AI) tools in making hiring and other employment decisions is drawing increased scrutiny. The Equal Employment Opportunity Commission (EEOC) published guidance on how employers’ use of AI tools may violate the Americans with Disabilities Act (ADA), and the New York City Council enacted a new law mandating a yearly bias audit of the tools, along with certain notice requirements. In light of this heightened focus, companies should carefully evaluate their use of AI tools to ensure they are compliant with current requirements.
EEOC Guidance on How the Use of AI Tools May Violate the ADA
The EEOC issued guidance warning employers that using algorithms and artificial intelligence in making hiring decisions can result in discrimination based on disability. These tools can include any software and applications that use algorithms to process data to evaluate, rate, or make other decisions about candidates and employees, such as resume scanners, employee monitoring software, chatbots, video interviewing software, and testing programs. While the EEOC’s guidance does not have the force of law, it serves as notice to employers so that they can avoid engaging in discriminatory action.
In the guidance, the EEOC focused on three situations in which an employer’s use of these algorithmic decision-making tools could violate the ADA:
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