The letters Introduction

This article highlights nondiscrimination provisions in the law that employers and employees should know when using technology in the workplace.

Under the Americans with Disabilities Act (ADA), it is unlawful for employers to discriminate against a qualified job seeker or employee on the basis of their disability. These nondiscrimination protections help qualified applicants and employees engage in work. An individual is considered qualified if they can perform a job’s essential functions either with or without the assistance of a reasonable accommodation.

Since the passage of the ADA in 1990, many employers have begun using technologies to assess their job applicants and employees. Examples include technology-based qualification standards, employment tests and selection criteria. Based on recent actions by the U.S. Department of Justice, these technology-based assessment techniques are also covered by the ADA. With few exceptions, employers must ensure their methods for evaluation are “job-related and consistent with business necessity” for the specific job in question. Employers also cannot require applicants to disclose a disability until after a conditional offer is made.

For example, when employers use technology such as artificial intelligence (AI) hiring tools, the employer must be able to justify that any trait they are assessing is necessary for performing the job, and that they are not making an unlawful disability-related inquiry.

Employment discrimination and the ADA

Under the ADA, disability discrimination in employment contexts may include:

Below are definitions for some of the relevant terms used above:

Qualification standard

A qualification standard measures the personal and professional attributes of an individual required to do the job. It may include skill, experience, education, medical, physical, safety and other requirements.

Job-related and consistent with business necessity

“Job-related” means that an employer must consider the needs of the specific job in question when deciding if someone is qualified or not. For example, a job requirement to hold a valid driver’s license is only relevant if the job involves driving. This means an employer cannot use the same criteria across an entire class of jobs. They must consider the needs of each individual job separately.

Under the ADA, an individual is considered qualified for a job if they can perform the essential functions of the job, either with or without reasonable accommodation. Employers can generally consider all aspects of what a job requires when making their hiring decisions, including both the essential and marginal functions of the job. However, if a candidate has a disability, the situation changes. When considering a candidate with a disability, the employer can only evaluate that individual’s ability to perform the essential functions of the job, either with or without reasonable accommodation. They can’t consider that candidate’s ability to perform marginal functions of the job because a marginal function is not considered “consistent with business necessity” – even if it is “job-related.”

However, a marginal function is not considered “consistent with business necessity” even if it is “job-related.”  Some employees or candidates with disabilities may require a reasonable accommodation to perform the marginal functions, which is covered under the ADA. This means employers can only consider that individual’s ability to perform the essential functions of the job when making their decision.

Further, the ADA requires that even if a qualification standard or selection criterion is job-related and consistent with business necessity, it may not be used to exclude an individual with a disability if this individual could satisfy the legitimate standard or selection criteria with a reasonable accommodation.

Reasonable accommodation

A reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things are usually done that enables a qualified individual with a disability to enjoy an equal employment opportunity. An example of a reasonable accommodation related to technology would be providing an alternate test format or extra time for a job candidate when an online test format is inaccessible to the individual due to a disability. The Job Accommodation Network (JAN) provides extensive guides for both employers and employees regarding reasonable accommodations.

An employer is not required to make a reasonable accommodation if it would impose an undue hardship on the operation of the business. An undue hardship is an action that requires “significant difficulty or expense” in relation to the size of the employer, the resources available and the nature of the operation.

How disability discrimination is determined

Disabilities vary so much that it is difficult, if not impossible, to make general determinations about the effect of various standards, criteria and procedures on “people with disabilities.” Often, there may be little or no statistical data to measure the impact of a procedure on any “class” of people with a particular disability compared to people without disabilities. As with other determinations under the ADA, the exclusionary effect of a selection procedure usually must be looked at in relation to a particular individual who has specific limitations caused by a disability. It is not necessary to make statistical comparisons between a group of people with disabilities and people who are not disabled to show that a person with a disability is screened out by a selection standard.

The ADA’s criteria differ from the legal standard under Title VII of the Civil Rights Act. Title VII clarifies that a selection procedure screens out a disproportionate number of persons of a particular race, sex, or national origin “class” – rather than applying this standard to individual cases. Because of these differences, the federal Uniform Guidelines on Employee Selection Procedures that apply to selection procedures on the basis of race, sex and national origin under Title VII of the Civil Rights Act and other federal authorities do not apply under the ADA to selection procedures affecting people with disabilities.

Related resources

EEOC Informal Discussion Letters Relating to Selection, Pre-Employment Inquiries, and Confidentiality – Read selected letters from staff members at the Equal Employment Opportunity Commission (EEOC) that discuss topics regarding workplace technology and employer obligations related to selection, pre-employment and confidentiality under the ADA.

Interview Checklist for HR Professionals Using AI-enabled Tools – This tip sheet offers best practices for HR professionals when using AI-enabled tools for recruiting and hiring.

The Americans with Disabilities Act – Learn details about how the ADA applies to workplace technology.

Continue to the Equitable AI Playbook Glossary