Using AI in Hiring and Employment Decisions: Best Practices
In the June VH blog, we discussed guidance from the Equal Employment Opportunity Commission (EEOC) regarding the use of artificial intelligence (AI) tools in hiring and other employment decisions. The content outlined how use of these automated tools could violate the Americans with Disabilities Act (ADA).
The guidance, while challenging, included these “promising practices” to ensure that employers comply with the ADA when using algorithmic decision-making tools.
Provide reasonable accommodations when legally required.
Train staff to recognize and process reasonable accommodation requests quickly and efficiently.
Obtain or develop alternative means of rating a job applicant when the current process is inaccessible or unfair to someone who has requested reasonable accommodation.
Require all third-party vendors to forward accommodation requests to the employer's attention or enter into an agreement with vendors to provide reasonable accommodations on the employer's behalf.
Minimize the chances that algorithmic tools create a disadvantage to individuals with disabilities, whether intentionally or unintentionally.
Use tools that have been designed to be accessible to individuals with as many different kinds of disabilities as possible.
Inform applicants and employees being rated that reasonable accommodations are available and providing clear instructions for making requests.
Clearly describe, in accessible formats, the characteristics a given algorithm is designed to assess, the method of assessment, and variables that may affect the rating.
Minimize chances that algorithmic tools will result in poor ratings to individuals able to perform essential job functions with a reasonable accommodation.
Verify that the algorithmic decision-making tools measure only abilities or qualifications that are truly essential for the job.
Ensure that essential functions are measured directly rather than by way of scores or characteristics correlated with these functions.
Ask vendors, in advance of purchasing an algorithmic decision-making tool, to confirm that the tool does not ask questions likely to elicit information about a disability or an individual's physical or mental impairments or health, unless such inquiries are related to a request for reasonable accommodation.
Using AI-based tools can indeed streamline hiring and evaluation to allow human resources employees to operate more efficiently. However, employers must be cognizant of the responsibility to make sure all tools are free of bias and will not violate the ADA.
As the EEOC and other government agencies — including state and local organizations — issue further guidance on AI-based tools, your employment attorney will help you implement the practices and tools to ensure compliance. As always, we are happy to help.