In recent years, the use of artificial intelligence (“AI”) in hiring has become much more prevalent. AI can be used to assist in the hiring process in a number of ways. For example, software programs and targeted algorithms may be used to advertise jobs to targeted applicants, screen job applicants, interact with or interview applicants with online “chat” boxes, use computerized screening tests to measure applicants’ skills, abilities, and personalities; and/or score applicants’ resumes based on certain criteria. It is currently estimated that 83% of employers and 90% of Fortune 500 companies use automated tools as part of their hiring processes.

As a result, last week, the U.S. Department of Justice (“DOJ”) and the Equal Employment Opportunity Commission (“EEOC”) issued joint guidance to employers and employees on ways that the use of these tools may unwittingly violate the Americans with Disabilities Act (“ADA”).” The DOJ’s guidance document, which is entitled, “Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring,” provides several examples of the types of technical tools that employers are currently using; clarifies that, when designing or choosing technological tools, employers must consider how those tools could impact employees with 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 that they have experienced discrimination. Similarly, the EEOC’s guidance document, which is entitled, “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 seeks and employees with disabilities. The EEOC also released a summary document providing tips for job applicants and employees.

The EEOC’s guidance documents is part of a larger initiative to ensure that the use of AI and other employment decisions complies with federal civil rights laws. The EEOC’s documents highlight three primary areas of concern for employers:

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

Ultimately, in light of this guidance and the ever-increasing use of AI or algorithmic tools in employment decisions, employers should review their processes and policies and consult with their attorneys to ensure that their use of these technological tools does not run afoul of federal civil rights laws.