New form of ADA discrimination to avoid

An Americans with Disabilities Act (ADA) court case can be a costly nightmare for employers. An emerging problem that’s making it difficult to stay ADA-compliant is the algorithms and artificial intelligence (AI) companies like yours use to efficiently make hiring decisions.

In a technical assistance document released May 12 – “Guidance on Algorithms, Artificial Intelligence and Disability Discrimination in Hiring” – the U.S. Department of Justice (DOJ) Civil Rights Division said that while automated hiring technology tools are useful, they’re not allowed to put job applicants with disabilities at a disadvantage for getting hired.

Tools that could unintentionally put an employer in ADA noncompliance include:

• resume scanners
• chatbot interviewers
• gamified personality tests, and
• facial recognition and voice analysis.

In an NBCNews.com report, EEOC Chair Charlotte Burrows warned employers, “if you’re buying a product to look at employment decision-making with AI, check under the hood.”

“We are not trying to stifle innovation here, but also want to make absolutely clear that the civil rights laws still still apply,” she said.

Tips for ADA compliance

Now may be the time to huddle up with HR and IT to evaluate how ADA-compliant your hiring tech is.

Tip 1: Make sure testing technologies are accessible for all. Some hiring tech requires an applicant to take a test that includes an algorithm. Under the ADA, employers must ensure that these tests or games measure only an applicant’s relevant skills and abilities, and not any impaired sensory, manual or speaking skills.

If a technology eliminates someone because of a disability, when that person is capable of doing the job, that could put you in the feds’ crosshairs. Adjusting your hiring process may be necessary so that a qualified person isn’t eliminated just because of a disability.

In addition, employers must steer clear of using hiring technologies to find out medical or disability-related information, or conduct medical exams.

Tip 2: Make sure you can make reasonable accommodations. The ADA requirement for reasonable accommodations to individuals with disabilities also extends to job applicants (unless doing so would create an undue hardship for the employer).

Some suggestions from the DOJ:

• Tell job applicants about the type of screening technology being used and how they’ll be evaluated.
• Provide adequate information to applicants so that they may decide whether to seek an accommodation.
• Provide and implement clear procedures for requesting accommodations, and
• Ensure that asking for an accommodation doesn’t hurt the applicant’s chance of getting the job.