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Employers using advancements in Human Resources (HR) software technology tools for hiring, training, and performance evaluations are being warned against relying too heavily on algorithms and artificial intelligence (AI) for decision making. Using AI in staffing and performance evaluations could unintentionally lead to discriminatory employment practices, including disability bias.

According to a pair of guidance documents titled Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring issued by the Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) on May 12, businesses must monitor for bias and provide reasonable accommodations as needed, especially for hiring practices.

In a tight labor market with record job openings, this is unwelcomed news for employers. A majority of companies have turned to technology to help ease staffing burdens. It’s estimated that more than 80% of all employers use some form of AI or algorithms to assist with all types of HR functions.

Guidance to Avoid Noncompliance with the DOJ, EEOC, and Americans with Disabilities Act (ADA)

1) Inventory all AI and algorithm-based tools that your company uses for HR functions.

Ensure you are aware of the issues flagged for your software. This is vital, especially in larger companies where the use of these tools may not be well-known.


2) Train HR personnel on the software programs and AI being used.

Ensure your HR staff is up to speed on the rule sets for your AI programs so they understand what decisions are being made by the software and what they will need to do to ensure the software can be edited to be compliant.


3) Beware of tools that may save time but decrease objectivity.

“The use of these tools may disadvantage job applicants and employees with disabilities,” according to the EEOC, such as:

  • Testing software that scores on personality traits based on other protected characteristics. For example, if your system automatically rejects candidates that live more than 20 miles from the worksite, you may be unintentionally limiting the ethnic and racial diversity of the candidates you consider, depending on the demographics of the area. Or, if the AI tool only allows consideration of applicants from certain schools or minimum education criteria, this may unintentionally screen out diverse candidates with atypical work experience that would otherwise be a fit for the role.
  • Eliminate programs that evaluate facial expressions, speech patterns, and ranks on keystrokes by scanners or monitors. These may prevent ADA-required “reasonable accommodations for all applicants.” Many types of disabilities and hiring technologies may impact each in a different way.
  • Do not accept technology vendors’ claim that their software is “bias free.” Carefully evaluate this software to ensure those with disabilities will not be negatively impacted.


4) Also study the guidance to learn what software functions are still accepted for categories such as:  

  • Targeted job advertisements
  • Meeting Job qualifications
  • Online interviews
  • Computer based skill tests
  • Scoring applicant resumes


In addition to this federal guidance, state legislatures have also begun to address discrimination issues with algorithms and artificial intelligence. Illinois recently passed the Artificial Intelligence Video Interview Act. This law imposes strict requirements on employers who use software to analyze video interviews. These requirements include specific notice requirements, limits on information sharing, and strict reporting requirements. The state of Washington is also considering a similar law. Employers can expect many other states and cities to follow suit.


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