New guidance from the Equal Opportunity Employment Commission (EEOC) and the U.S. Department of Justice (DOJ) warns employers that they could be breaching the Americans with Disabilities Act (ADA) if they use AI-based software designed to shortlist candidates that fail to create an equitable experience for job seekers with disabilities—quoting further from Forbes.
Employers are reminded that, even if they elect to deploy software using algorithms wholly designed by specialist third-party providers, they could be acting unlawfully should the platform disadvantage candidates with disabilities.
This can occur due to the software itself being inaccessible or discriminatory in how traits are evaluated and scored. If the employer fails to recognize this and act by providing “reasonable accommodations,” – they could be breaking the law.
Several practical examples of how AI algorithmic hiring tools can create unequal experiences for candidates with disabilities are laid out.
These might include the use of timed or gamified tests that are inaccessible to candidates with motor or visual impairments as a result of it being difficult for them to use a mouse or view the screen, particularly when having to operate at speed.
Another example may be video analysis software that measures facial expressions or speech patterns. Such software is likely to automatically mark down an individual on the autism spectrum who may possess a non-standard eye gaze or someone with a mild speech impediment.
Why do we care?
Here’s a key insight of the day – the AI may be causing organizations to break the law.
This is exactly the space I think has value. Not just evaluating technology for it’s own sake, but understanding these implications and helping to navigate them. Which AI approaches handle these legal requirements? Answering that question is multitudes more valuable than simply implementing a system.
And note the other portion of this insight – the end customer does not abdicate away their legal obligations. That’s a key understanding of the risks, and again, providers need to be communicative with their customers over system risks. If a customer doesn’t understand that… there’s a round two on those lawsuits.