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EEOC Released Guidance on using Algorithms, Artificial Intelligence, and Software to Access Job Applicants and Employees with Disabilities

By Debra Milstein Gardner - Jan 20, 2023 11:07:54 AM - 3 MINS READ

EEOC Guidance.

Guidance provides FAQs to help employers avoid liability when using software to aid in the hiring and promotion process

The Equal Employment Opportunity Commission (EEOC) has provided guidance titled, The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Access Job Applicants and Employee.” This guidance is to help employers avoid screening out applicants and employees with disabilities in the hiring or promotion process.

EEOC acknowledges that employers are using computer-based tools to assist in hiring, monitoring work performance, determining pay or promotions, and establishing other terms and conditions of their employment. Examples of such software includes: (1) employee monitoring software that rates employees on the basis of their keystrokes or other factors, (2) virtual assistants or chatbots that ask job candidates about their qualifications and reject those who do not meet pre-defined qualifications; (3) video interviewing software that evaluates candidates based on their facial expressions and speech patterns, and (4) testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or a traditional test. However, they also recognize that these tools may create a disadvantage to people with disabilities in violation of the Americans with Disabilities Act (ADA).

The guidance starts out by defining software, algorithms, and artificial intelligence (AI) and then provides FAQs to explain how employers’ use of software that relies on algorithmic decision-making may violate the ADA. Several of the FAQs address the need for providing reasonable accommodations when using these software aids. They also provide “Promising Practices for Employers” and promising practices for applicants and employees who are being assessed, along with information on how to file a charge of discrimination.

The Department of Justice (DOJ) released similar guidance titled, Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring.

Lightbulb Take

OutSolve’s Take 

Employers should be cognizant of the pitfalls of using software and other technology in the hiring and promotion process that could inadvertently lead to disability discrimination. Along with the guidance from the EEOC, employers should be aware of related laws in their state and municipalities relating to the use of AI in employment. Additionally, the Office of Federal Contracts Compliance Programs (OFCCP) has added an item on the use of AI and algorithms in the most recent proposed scheduled letter and itemized listing. Item #19 asks contractors to provide “Documentation of policies and practices regarding all employment recruiting, screening, and hiring mechanisms, including the use of artificial intelligence, algorithms, automated systems or other technology-based selection procedures.”

As part of our annual Affirmative Action Plan preparation process, we conduct a disparity analysis of all hires, promotions, and terminations to see if there is an indication of a potential concern with respect with a particular minority or gender group. If you have any questions on conducting a disparity analysis, please reach out to your consultant or contact us at info@outsolve.com or by calling 888-414-2410.


Debra Milstein Gardner

Debra Milstein Gardner has worked in the Equal Employment Opportunity (EEO) and Affirmative Action (AA) space for the past 43 years while working in the public and private sectors in various human resources compliance roles. She began her career working for the Equal Employment Opportunity Commission and then went to the Marriott Corporation for nine years working in EEO, Affirmative Action and field human resource roles. In 1990, Debra founded Workplace Dynamics LLC providing EEO, AA, and DEI consulting services to government contractors. In 2016, Debra sold the affirmative action portion of Workplace Dynamics to OutSolve LLC and works part-time as a Market Analyst. Debra is a sports fanatic, routing for the Baltimore Ravens and all Virginia Tech Hokie teams. She loves to hike and boat in her mountain and lake community of Lake Lure, NC.

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