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Capitol Correspondence - 05.17.22

EEOC Issues Guidance for Employers on the Use of Software Tools for Employees

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The U.S. Equal Employment Opportunity Commission (EEOC) released a new technical assistance document addressing disability discrimination when employers use artificial intelligence and other software tools to make employment decisions.

Employers giving computer-based tests to applicants or using computer software to score applicants’ resumes may result in unlawful discrimination in violation of the Americans with Disabilities Act (ADA). The EEOC guidance states that employers may engage in discrimination by failing to provide to job applicants or employees a reasonable accommodation in order to be rated fairly and accurately by the algorithm. Employers may also run afoul of the ADA by using software that violates the ADA’s restrictions on disability-related inquiries and medical examinations or by using algorithmic decision-making tools that screen out individuals with disabilities.

The EEOC guidance document provides a list of promising practices for employers to reduce the likelihood of disability discrimination and also provides guidance to job applicants and employees who think their rights may have been violated under the ADA.