Employers’ use of artificial intelligence tools can possibly violate the Americans with Disabilities Act, according to both the US Department of Justice and the Equal Employment Opportunity Commission. Each issued technical assistance documents Thursday that outline ways AI and other software hiring tools used to make employment decisions can violate the Americans with Disabilities Act.

Employers may give computer-based tests to applicants or use computer software to score applicants’ résumés, according to the departments, but many of these tools use algorithms or AI that may result in unlawful discrimination against people with disabilities.

Assistant Attorney General for Civil Rights Kristen Clarke told reporters that the US is “at a critical juncture” with this technology and that employers are turning to algorithms and AI more frequently to help them select new employees, track performance and determine pay or promotions, Federal News Network reported.

“We are sounding an alarm regarding the dangers tied to blind reliance on AI and other technologies that we are seeing increasingly used by employers. And today, we’re making clear that we must do more to eliminate the barriers faced by people with disabilities,” Clarke said.

Department of Justice. The Justice Department’s guidance document, Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring, provides a broad overview of rights and responsibilities.

This document:

• Provides examples of the types of technological tools that employers are using;
• Clarifies that, when designing or choosing technological tools, employers must consider how their tools could impact different disabilities;
• Explains employers’ obligations under the ADA when using algorithmic decision-making tools, including when an employer must provide a reasonable accommodation; and
• Provides information for employees on what to do if they believe they have experienced discrimination.

EEOC. The EEOC’s document, The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees, focuses on preventing discrimination against job seekers and employees with disabilities. It outlines issues that employers should consider to ensure that the use of software tools in employment does not disadvantage workers or applicants with disabilities in ways that violate the ADA. The document highlights practices to reduce the likelihood of disability discrimination and focuses on three primary concerns under the ADA:

• Employers should have a process in place to provide reasonable accommodations when using algorithmic decision-making tools;
• Without proper safeguards, workers with disabilities may be “screened out” from consideration in a job or promotion even if they can do the job with or without a reasonable accommodation; and
• If the use of AI or algorithms results in applicants or employees having to provide information about disabilities or medical conditions, it may result in prohibited disability-related inquiries or medical exams.

“New technologies should not become new ways to discriminate. If employers are aware of the ways AI and other technologies can discriminate against persons with disabilities, they can take steps to prevent it,” said EEOC Chair Charlotte Burrows. “As a nation, we can come together to create workplaces where all employees are treated fairly. This new technical assistance document will help ensure that persons with disabilities are included in the employment opportunities of the future.”