Keeping Disability Bias Protections Up to Date as Technologies Emerge
By Nathan Walsh
As time marches on, we humans keep coming up with new inventions and technologies. Sometimes, these new inventions and technologies can be used against the people who created them. One way these inventions or technologies can do that is by discriminating against us because of our disabilities or other protected characteristics such as race or sex. Luckily, the legal field is able to adapt to new inventions and technologies so that our laws are able to keep protecting us against new situations brought about by technology.
In May, the Department of Justice and the Equal Employment Opportunity Commission each issued new warnings against disability discrimination by employers’ use of artificial intelligence tools. Artificial intelligence is the ability of a computer or computer-controlled robot to perform tasks usually associated with human beings. The term is often applied to projects or tools that show the ability to reason, generalize, or learn from past experience. Artificial intelligence can help companies select new employees, monitor their work, and determine pay and promotions. Artificial intelligence also plays a part in the tests applicants are given and the scoring of their resumes.
Many hiring technologies are software programs that use artificial intelligence or algorithms. An algorithm is a set of steps for a computer to accomplish a task—for example, searching for certain words in a group of resumes.
Yet just as a human being hiring people could discriminate against applicants by screening out those with disabilities, these technologies could also play a similar role if left unchecked and unregulated. Thankfully, the Department of Justice and the Equal Employment Opportunity Commission both clarified that employers could violate the Americans with Disabilities Act through the use of technology.
For example, employers might use technology:
- to show job advertisements to targeted groups.
- to decide if an applicant meets job qualifications.
- to hold online video interviews of applicants.
- to use computer-based tests to measure an applicant’s skills or abilities.
- and to score applicants’ resumes.
The Department of Justice’s document titled Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring can be found on the ADA website. The document provides examples of the types of artificial intelligence that employers are using and provides information for workers on what to do if they believe they experienced discrimination. Also, the document explains when employers must provide reasonable accommodations while using artificial intelligence. Finally, it clarifies that employers must consider people with disabilities when they are designing or choosing which technology to use.
The Equal Employment Opportunity Commission’s technical assistance document titled The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees can be found on the EEOC website. This document highlights best practices to reduce the risk of disability discrimination through artificial intelligence, including the recommendation that employers have a reasonable accommodation process to help applicants through application processes that involve artificial intelligence. The EEOC document also warns against artificial intelligence tools that may ask disability-related questions or request medical exams that are prohibited by the Americans with Disabilities Act.
Along with its technical assistance document, the Equal Employment Opportunity Commission also released a related document providing tips for job applicants and employees that can be found on their website.
“New technologies should not become new ways to discriminate. If employers are aware of the ways AI and other technologies can discriminate against persons with disabilities, they can take steps to prevent it,” said Charlotte A. Burrows, chair of the Equal Employment Opportunity Commission. “As a nation, we can come together to create workplaces where all employees are treated fairly. This new technical assistance document will help ensure that persons with disabilities are included in the employment opportunities of the future.”
Together, the Department of Justice and the Equal Employment Opportunity Commission enforce the Americans with Disabilities Act protections that apply to private businesses, state and local governments, and the federal government. Therefore, it is essential that the DOJ and the EEOC stay up to date when it comes to protecting individuals with disabilities from employment discrimination. One way they do this is through the publication of guidance documents such as these on their websites. Another timely document worth checking out right now is What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws. This regularly updated document can be found on the EEOC website.
If you feel like you have been discriminated against because of your disability through an employer’s use of artificial intelligence or any other reason, it is essential to file a timely charge of discrimination with the Equal Employment Opportunity Commission. There are strict time limits for filing a charge. If you are an applicant for a federal job or a federal employee, you must contact the Equal Employment Opportunity counselor for that federal agency and have an even shorter time limit for doing so. Neither process requires you to have an attorney, but you may want to consult with or hire an attorney before proceeding.
Disability Rights Tennessee is currently able to provide legal advocacy to individuals with disabilities who face employment barriers or discrimination through its Protection & Advocacy for Beneficiaries of Social Security program. Although this program is limited to helping those who receive either Supplemental Security Income (SSI) or Social Security Disability Income (SSDI) for a disability, our Resource & Referral Team is always available to provide the best resources and referrals for your issue. We can be reached at 1-800-342-1660, firstname.lastname@example.org, or https://www.disabilityrightstn.org/get-help.
If you or a family member has a disability, I highly recommend you become acquainted with Disability Rights Tennessee. This organization can be very helpful in so many situations that you may encounter. And I am grateful for Nathan for taking the time to explain these two documents and how they might help job applicants and employees who find themselves tangling with possibly discriminating technologies. It’s very nice to know that the federal government is updating the guidelines and helping people with disabilities and employers navigate this high-tech world we now live in. If you have questions or concerns, please let me know by emailing me at email@example.com. Thank you for reading!
Nathan Walsh is a staff attorney at Disability Rights Tennessee. His work focuses primarily on assisting clients of vocational rehabilitation and beneficiaries of Social Security with barriers to work. He graduated from Vanderbilt Law School in 2016 and launched his public interest career as the inaugural recipient of the George Barrett Social Justice Fellowship.