The development of AI technologies is outpacing the evolution of regulations and standards that directly enforce the use of AI hiring tools. However, employers should proactively consider legal and equity concerns related to AI hiring tools before implementing these technologies in their organizations. Acting in accordance with existing guidance can put your organization on the right path as new standards unfold over time.
This page provides brief highlights from legislation governing nondiscrimination in employment, which could have implications for the use of AI hiring tools. However, this is not a substitute for official federal guidance.
The Americans with Disabilities Act (ADA)
The Americans with Disabilities Act (ADA) prohibits private employers and state and local governments from using hiring processes that discriminate on the basis of disability. In 2022, the U.S. Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) published guidance related to ADA and the disability discrimination risks of algorithm-based hiring tools. EEOC is a federal agency that enforces federal regulations on nondiscrimination in employment. In 2022 EEOC and the Office of Federal Contract Compliance Programs (OFCCP) launched the Hiring Initiative to Reimagine Equity (HIRE) to address key hiring and recruitment challenges, including equity in the use of tech-based hiring systems.
Technical assistance guidance
- EEOC provides detailed guidance on how the ADA protects against disability discrimination in hiring in the technical assistance document The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees. This guidance was published in May 2022 and is the first of its kind from a U.S. government agency.
- DOJ provides related guidance on the webpage Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring.
How the ADA applies to technology discrimination
Employer considerations for complying with the ADA include:
- Employers must assess the extent to which candidates can perform the essential functions of the job, including candidates with disabilities who may request reasonable accommodations to perform essential job functions.
- Employers should not make disability-related inquiries of candidates (questions that seem likely to elicit information about a candidate’s disability) prior to an offer of employment. For example, it would be acceptable to ask whether a candidate for a mail delivery position is capable of lifting heavy packages, but not to ask about whether the candidate is taking any prescription medications, or to ask them generally if they have any impairments. Employers may make disability-related inquiries only after making a conditional job offer, and only if they do so for all individuals entering the same job category.
- Employers must provide candidates with employment tests in an accessible format. If that is not possible, the employer must offer an alternative via reasonable accommodation without prejudicing the candidate on the basis of disability. Keep in mind that, where possible, it is best if the employer provides all accessibility options up front, as opposed to requiring the candidate to ask for the test in an alternate accessible format, thereby revealing their disability. This is because some legal thinkers have suggested that using an inaccessible platform that may prematurely require candidates with disabilities to disclose medical information could put the employer on notice of the applicant’s disability and therefore support an applicant’s prima facie claims of disability discrimination. Employers can only use employment tests to evaluate candidates on factors that are directly “job-related” and “consistent with business necessity.” They cannot use hiring selection criteria that “screen out or tend to screen out” candidates with disabilities. The ADA also explicitly bans medical tests for job candidates prior to the employer making a conditional job offer; an employer may only require a medical test for candidates after making a job offer and so long as it does so for all individuals entering the same job category.
When procuring and implementing AI in their organizations, employers should:
- Ensure they inform all candidates that alternative testing is available, and that they will not discriminate against anyone who requests an accommodation. Employers have to clearly describe the tests and how they work, so candidates are informed about what accommodations they may need, such as a screen reader or a calculator.
- Justify that any trait they are assessing is necessary for performing the job, and that they aren’t making an unlawful disability-related inquiry. Learn more about employment law red flags when using AI in hiring.
Related ADA Resources
View these resources for more background on the legal and regulatory provisions of the ADA:
- Nondiscrimination, Technology, and the ADA
- EEOC Informal Discussion Letters Relating to Selection, Pre-Employment Inquiries, and Confidentiality
- Use of Artificial Intelligence to Facilitate Employment Opportunities for People with Disabilities (EARN)
State legislation
State lawmakers have begun considering AI’s benefits and challenges. The National Council of State Legislatures is regularly tracking legislation related to AI. For example, in 2019, Illinois signed into law the Artificial Intelligence Video Interview Act (“AIVI Act”), which creates disclosure requirements for companies that utilize AI-enabled video interview technology. This law requires that employers take certain steps prior to conducting the recorded video interview. This included that they:
- Notify each applicant that AI may be used to analyze the video.
- Prior to the interview, provide each applicant with information explaining how the AI tool works and what general types of characteristics it uses to evaluate applicants.
- Obtain prior consent from the applicant to be evaluated by the AI program.
