This guidance explains how algorithms and artificial intelligence can lead to disability discrimination in hiring. The Department of Justice enforces disability discrimination laws with respect to state and local government employers. The Equal Employment Opportunity Commission (EEOC) enforces disability discrimination laws with respect to employers in the private sector and the federal government. The obligation to avoid disability discrimination in employment applies to both public and private employers. Employers, including state and local government employers, increasingly use hiring technologies to help them select new employees.
Assistant Attorney General for Civil Rights Kristen Clarke speaks at a news conference on Aug. 5, 2021. The federal government said Thursday that artificial intelligence technology to screen new job candidates or monitor their productivity can unfairly discriminate against people with disabilities. Assistant Attorney General for Civil Rights Kristen Clarke speaks at a news conference on Aug. 5, 2021. The federal government said Thursday that artificial intelligence technology to screen new job candidates or monitor their productivity can unfairly discriminate against people with disabilities. The federal government said Thursday that artificial intelligence technology to screen new job candidates or monitor worker productivity can unfairly discriminate against people with disabilities, sending a warning to employers that the commonly used hiring tools could violate civil rights laws.
As companies increasingly involve AI in their hiring processes, advocates, lawyers, and researchers have continued to sound the alarm. Algorithms have been found to automatically assign job candidates different scores based on arbitrary criteria like whether they wear glasses or a headscarf or have a bookshelf in the background. Hiring algorithms can penalize applicants for having a Black-sounding name, mentioning a women's college, and even submitting their résumé using certain file types. They can disadvantage people who stutter or have a physical disability that limits their ability to interact with a keyboard. All of this has gone widely unchecked.
The technical assistance is a follow up to EEOC's announcement last fall that it would address the implications of hiring technologies for bias. In October 2021, Chair Charlotte Burrows said the agency would reach out to stakeholders as part of an initiative to learn about algorithmic tools and identify best practices around algorithmic fairness and the use of AI in employment decisions. Other EEOC members, including Commissioner Keith Sonderling, have previously spoken about the necessity of evaluating algorithm-based tools. A confluence of factors have led the agencies to address the topic, Burrows and Clarke said during Thursday's press call. One is the persistent issue of unemployment for U.S. workers with disabilities.
The use of artificial intelligence ("AI") and machine learning in the workplace is growing exponentially – and specifically in hiring. Over the last two decades, web-based applications and questionnaires have made paper applications nearly obsolete. As employers seek to streamline recruitment and control costs, they have jumped to use computer-based screening tools such as "chatbots" to communicate with job applicants, to schedule interviews, ask screening questions, and even conduct video conference interviews and presentations in the selection process. Employers of all sizes are creating their own systems, or hiring vendors who will design and implement keyword searches, predictive algorithms and even facial recognition algorithms to find the best-suited candidates. The algorithms in these computer models make inferences from data about people, including their identities, their demographic attributes, their preferences, and their likely future behaviors.