The U.S. Equal Employment Opportunity Commission (EEOC) has released guidance on how the tools may be violating existing requirements under Title I of the Americans with Disabilities Act (ADA). Employers are responsible for vetting potential bias in AI-based hiring tools and the EEOC warns of three common applications where these tools could violate the ADA. For example:

• Failing to provide a reasonable accommodation necessary for an applicant to be evaluated fairly by an algorithm or AI-based tool.
• Using a decision-making tool that "screens out" an individual with a disability by preventing the applicant from meeting selection criteria due to a disability.
• Using a decision-making tool that incorporates disability-related inquiries or medical examinations.

The guidance provides other practical steps for reducing the chances that algorithmic decision-making will screen out an individual because of a disability, including:

• Informing applicants that reasonable accommodations are available.
• Providing alternative testing or evaluation if an applicant has previously scored poorly due to a disability.
• Providing applicants information about algorithmic hiring tools that are used, including the traits or characteristics measured and any disabilities that may negatively impact an applicant's result.
• Basing traits and characteristics that are evaluated by AI on necessary job qualifications.
• Selecting algorithmic evaluation tools designed with accessibility for individuals with disabilities in mind.

Lauren Daming, Greensfelder attorney and CIPP says: "While the EEOC's new guidance is a big step toward helping employers evaluate their hiring practices for potential disability bias, it leaves many issues unaddressed. For example, the guidance recognizes that algorithmic decision-making tools may also negatively affect applicants due to other protected characteristics such as race or sex, but the guidance is limited to disability-related considerations alone."