AI Hiring Tools and the Law
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 U.S. Equal Employment Opportunity Commission (EEOC) enforces regulations on nondiscrimination in employment, including detailed guidance on the implementation of Employment Tests and Selection Procedures. To explore this topic further, check out the policy brief Use of Artificial Intelligence to Facilitate Employment Opportunities for People with Disabilities from the Employer Assistance and Research Network on Disability Inclusion (EARN).
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.
- 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 heaving 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 upfront, 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.
The EEOC is also investigating the potential for discrimination with algorithms used to make hiring, promotion, and other job-related decisions. For example, in 2019, the EEOC found reasonable cause to conclude that employers violated civil rights protections by excluding women or older workers or both from seeing online job ads they posted.
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.