Digital technologies like artificial intelligence (AI) for parsing resumes help staffing firms optimize efficiency and streamlining their recruiting process. But these technologies can also unintentionally introduce the potential for bias and discrimination.
Staffing firms that qualify as employers must comply with Equal Employment Opportunity (EEO) laws, which include the Americans with Disabilities Act (ADA). In some cases, even staffing firms that don’t qualify as employers can still be held liable for discrimination.
Last month, the Equal Employment Opportunity Commission (EEOC) released new guidance on the ADA and the use of software, algorithms, and AI to assess job applicants and employees. This Q&A provides a brief overview of the guidance.
Note: This article is intended for informational purposes only. It does not constitute legal advice.
What types of software are covered in the guidance?
Any type of software that uses algorithmic decision-making may violate the ADA. The guidance gives these examples:
- Resume scanners that prioritize applications using certain keywords
- Chatbots that ask job candidates about their qualifications and reject those who don’t meet predefined requirements
- Video interviewing software that evaluates candidates based on their facial expressions and speech patterns
- Testing software that provides “job fit” scores or perceived “cultural fit”
How can using automated recruiting software violate the ADA?
There are three main ways employers using these tools can violate the ADA:
- By not providing a reasonable accommodation for a job applicant to be rated fairly and accurately by the algorithm
- By intentionally or unintentionally screening out an individual with a disability, even though the individual is able to do the job with a reasonable accommodation
- By using a tool that violates restrictions on disability-related inquiries and medical exemptions
Note that the employer can be held responsible for ADA discrimination even if the tools are provided by third-party vendors.
How can staffing firms and their clients avoid violating the ADA when using automated recruiting software?
Providing reasonable accommodations
Employers can help ensure ADA compliance by explaining to job applicants what the hiring process looks like and making reasonable accommodations available.
Here are a couple of examples from the guidance:
- If a hiring process includes a video interview, the employer or software vendor may tell applicants that the job application process will involve a video and provide a way to request a reasonable accommodation.
- A job applicant who has limited manual dexterity because of a disability may report that they would have difficulty taking a knowledge test that requires the use of a keyboard, trackpad, or other manual input device. Especially if the responses are timed, this kind of test will not accurately measure this particular applicant’s knowledge. In this situation, the employer would need to provide an accessible version of the test…as a reasonable accommodation, unless doing so would cause undue hardship.
Ensuring tools don’t screen out individuals with disabilities
Individuals with disabilities may be screened out by software tools in a way that’s discriminatory. For example, a video interviewing software that analyzes speech patterns may reject applicants with a speech impediment.
The guidance recommends employers verify whether the tools they use were developed with individuals with disabilities in mind. This includes making the user interface accessible, making materials available in different formats, and ensuring that the traits or characteristics measured by the tools don’t correlate with specific disabilities.
In addition, when implementing a new tool, employers can take steps to reduce the likelihood that individuals with disabilities will be screened out. These include providing job applicants information about the tool, clearly indicating that reasonable accommodations are available, and providing clear instructions for how to request them.
Finally, one of the best ways to ensure software doesn’t screen out individuals with disabilities is to make sure that the tools only measure abilities and qualifications that are actually necessary to do the job.
Eliminating disability-related inquiries and medical examinations
Employers are not allowed to ask job applicants questions that would elicit information about a disability or that would qualify as a medical examination before making a conditional offer of employment. This restriction also applies to algorithmic decision-making tools.
