New EEOC and DOJ guidelines target employment discrimination in AI technology

This effort aims to mitigate discrimination and bias in the algorithm, artificial intelligence, and software used in recruitment processes.

The use of emerging technology such as artificial intelligence in the hiring process is often met with concerns about bias, especially as agencies work to improve fair services.

The Equal Employment Opportunity Commission and the Department of Justice on Thursday issued new guidance that seeks to mitigate disability discrimination when employers use technology for hiring and making hiring decisions.

The documents indicate that the algorithms, artificial intelligence, and other software used in the recruitment and screening processes often discriminate against job applicants with disabilities. These include technologies such as computer-based tests to measure an applicant’s skills and abilities, assessment of applicants’ resumes, and online video interviews using artificial intelligence.

The EEOC and the Department of Justice will enforce the guidance in accordance with the Americans with Disabilities Act – a federal law that prohibits employers and companies from discriminating on the basis of disability. It will require all employers from the public and private sectors to comply.

“At the Department of Justice, we are committed to using the ADA to address the barriers that stand in the way of people with disabilities seeking to enter the labor market,” Kristen Clark, assistant attorney general for the Department of Justice’s Civil Rights Division, said at a media event. . “While our technology continues to advance rapidly, so must our implementation efforts to ensure that people with disabilities are not marginalized and neglected in the digital world.”

This guidance follows the Algorithmic Justice and Artificial Intelligence Initiative that EEOC President Charlotte Burroughs launched last year to ensure emerging technologies applied to employment decision-making comply with federal civil rights laws.

“According to the US Bureau of Labor Statistics, individuals with disabilities experience unemployment rates that are twice the rates of other workers without disabilities,” Burrows said. “We know that over 80% of employers are starting to use AI in some form in their broader work and in making hiring decisions, so we thought it was really important to make sure that we helped explain how to ensure that this could really align with civil rights laws Rather than becoming a high-tech path to differentiation.”

Burroughs noted that employers looking to prevent disability discrimination during their hiring processes should keep three different red flags in mind across the vendor products they use. The first is the lack of reasonable accommodation for potential applicants with disabilities.

‘If the seller does not think [reasonable accommodation], is not ready to engage in that — that should be a warning sign,” Burroughs said. “One of the things that could happen is in evaluation or any evaluation — if it’s all automated, it’s very difficult for a disabled person to raise their hand and say, ‘ Hey, I need accommodation.’ ‘

Burroughs added that “screen outage” is the second way disability discrimination can occur. This is when employers use algorithms and artificial intelligence to block applicants based on the evaluations they make. These algorithms can, on occasion, screen applicants for disability rather than their ability to meet job requirements, which Burroughs noted is a major problem across these technologies.

Third, Burroughs said that AI used in hiring processes could also violate the ADA’s restrictions on disability-related inquiries and medical examinations.

“If, for example, one of the questions that is used and that employees ask in the automated process is: Have you ever applied for workers’ comp? Well, that’s often a disability, but it would reveal that the person had some kind of disability, some kind of injury that I left for that,” Burroughs said. “It’s a taboo question, so the business owner needs to make sure that kind of thing isn’t incorporated into technology.”

To mitigate disability discrimination when employing employment programs, Department of Justice guidelines recommend testing techniques to assess job skills rather than disabilities or other assessments that measure applicants’ sensory, manual, or speaking skills.

Job applicants who feel their rights have been violated may file a charge of discrimination with the EEOC or a complaint with the Department of Justice’s Civil Rights Division.

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