The New Jersey Employment Law Firm Blog
The Americans with Disabilities Act (ADA) of 1990 protects workers against discrimination because of injuries, illnesses, and other conditions that impair their daily lives. The statute prohibits employers from discrimination based on disability and requires them to provide reasonable accommodations to help employees with disabilities perform their jobs. Compliance with the ADA often requires careful consideration of employees’ needs on a case-by-case basis. The Equal Employment Opportunity Commission (EEOC) has addressed concerns about employers’ use of artificial intelligence (AI) systems to handle various tasks once left to human employees. The agency has identified areas of concern where an AI system could lead to ADA violations.
Protections Under the ADA
An employer may not “discriminate against a qualified individual on the basis of disability” in matters like hiring, promotions, termination and layoffs, compensation, and other aspects of employment. The ADA prohibits “medical examinations and inquiries” intended to assess whether an individual has a covered disability, or the extent of such a disability.
The statute imposes an obligation on employers to make reasonable accommodations for “the known physical or mental limitations” of an employee or job applicant who is otherwise able to perform their job duties. The only exception is when an employer can show that an accommodation “would impose an undue hardship” on the employer’s business. Accommodations that have been deemed “reasonable” include wheelchair access, flexible scheduling, and reading assistance for employees with visual impairments.
AI and the ADA
The EEOC issued a technical assistance document a couple of years ago that addresses how employers can comply with the ADA while using AI tools in hiring and other employment-related decisions. The agency notes that employers may be liable for violating the ADA because of problems with AI software that the employers had no part in creating. They may also be liable for ADA violations for actions that third-party software vendors take on employers’ behalf.
In this document, the EEOC identifies three areas of concern regarding AI systems and the ADA:
Reasonable Accommodations
Employers using AI systems can violate the reasonable accommodations provisions of the ADA, the EEOC warns. They must make accommodations for employees who might have difficulty completing computer-based assessments because of disabilities, such as visual impairments or limited use of their hands. Examples of accommodations include screen readers and extended time to complete a test.
Discriminatory Screening
Some AI tools employ algorithms to help employers screen job applicants or candidates for promotion. These tools could inadvertently discriminate based on disability if a disability causes someone to receive a less favorable score or review but otherwise does not affect their ability to do the job with reasonable accommodations.
The EEOC gives the example of a chatbot programmed to screen out candidates who “indicate that they have significant gaps in their employment history” without further inquiry as to why those gaps exist. If the person was unable to work because of a disability, this could violate the ADA.
Medical Inquiries
Some AI tools could meet the ADA’s definition of an unlawful “disability-related inquiry.” AI applications that ask candidates for information about their health could violate the ADA, especially if they seek information about impairments.
Employers that violate their employees’ rights under federal or state law could be liable to them for damages. An experienced employment attorney can advise you of your rights and help you assert a claim for compensation. The Resnick Law Group advocates for workers in New Jersey and New York. To schedule a confidential consultation to see how we can help you, please contact us today online, at 973-781-1204, or at 646-867-7997.