Our company recently learned that the U.S. EEOC issued guidance on Artificial Intelligence and Americans with Disabilities Act Considerations. What are the key areas our organization should keep top of mind when considering AI and ADA in our workplace?

Indeed, the U.S. Equal Employment Opportunity Commission recently issued a “Technical Assistance” document addressing compliance with ADA requirements and agency policy when using AI and other software to hire and assess employees. The EEOC also published a brief summary of this guidance entitled: “Tips for Workers,” which is intended as an educational resource, “so that people with disabilities know their rights and employers can take action to avoid discrimination.”

From a practical standpoint it is important to note that the EEOC focuses broadly on three themes, specifically, how the use of algorithmic decision-making may violate the ADA with respect to:

1. Reasonable accommodation for applicants and employees;
2. Where AI decision-making tools may “screen out” individuals with disabilities; and
3. Where an AI-based tool may violate ADA restrictions on disability-related inquiries.

Ultimately, employers using any of these tools in their recruiting, hiring, and review of applicants and employees (which, by some estimates, is up to 83% of employers) should take careful note of the EEOC’s position as to where these tools may run afoul of the ADA.

Employers seeking to use algorithmic tools, whether developed on their own, or provided by way of a third-party vendor, should consider the following practical applications to minimize the risk of violating the ADA.

• If the tool requires applicants or employees to engage a user interface, is the interface accessible to persons with disabilities?
• Are materials presented in alternative formats?
• Has the algorithm been assessed to determine whether it disadvantages individuals with disabilities?
• Does the tool clearly indicate that reasonable accommodation, including alternative formats, are available to persons with disabilities?
• Are there clear instructions for requesting accommodation?
• Does the tool explain to applicants and employees what metrics the tool measures, how they are measured, and whether any disability might impact an assessment, such that a user with a disability would know to ask for a reasonable accommodation?

For more information on engaging employees in today's workplace, please reach out to your Littler attorney.