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Challenges in Avoiding Disability Bias When Using AI in Hiring

“I get nervous when employers are using AI in the hiring process. You may not realize all the things you need to be thinking about. Yes, it is very dangerous.”

By Charles Toutant | June 01, 2022 at 06:44 PM
Stock illustration: Robot putting human in place. Credit: Alexander Limbach/Shutterstock.com

A sobering message from Washington highlights the risk that employers may violate the Americans with Disabilities Act (ADA) when they use artificial intelligence (AI) programs to help with employment decisions. Recent notices from the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) about the potential for disability discrimination when employers use AI and algorithms to evaluate job applicants emphasize the complexity of avoiding discriminatory conduct, some employment lawyers have said.

“I’m generally a relatively conservative employment adviser, and AI personally makes me pretty nervous,” said Lee Moylan, an employment lawyer at Klehr Harrison Harvey Branzburg in Philadelphia.

The EEOC and DOJ notices make clear that employers using programs based on AI or algorithms when screening applicants should inform applicants about the hiring process and emphasize the right to reasonable accommodations for an applicant whose disability impacts their ability to take part in the process. But because the ADA covers such a broad swath of issues, and a prospective employer might not know that a job applicant has a disability, avoiding discriminatory conduct when using an AI program is difficult, Moylan said.

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