Page 21 - BusinessWest July 25, 2022

Use with Caution
Software-based Screening Tools May Violate ADA
By Amelia J. Holstrom, Esq. and Trevor Brice, Esq.
Over the past several years, employers have turned to various software-based recruitment and employment screening
tools to evaluate applicants and employees. The software, which uses artificial intelli- gence and various algorithms to make deci- sions, often helps employers evaluate more applicants in a shorter period of time, select individuals for interviews, or evaluate current employees for raises or advancement at the business.
enforces federal anti-discrimination in employ- ment laws, issued guidance to employers, titled “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees.” The guidance addresses three main areas, or ways, in which software-based screening tools may vio- late the Americans with Disabilities Act (ADA), if employers are not careful.
First, the EEOC guidance reminds employers that if their software-based screening tool does
software, it may violate the ADA. Under the ADA, employers are required to provide reasonable accommodations to applicants and employees. For example, it may be a reasonable accommo- dation to allow a visually impaired applicant or employee to be evaluated through a non-com- puter-based screening tool.
Second, the EEOC warns employers that without proper safeguards, a software-based screening tool may unintentionally (or intention- ally) screen out individuals with disabilities. The EEOC specifically referenced ‘chatbot’ screening tools, which are designed to engage in communi- cations online through texts and emails. A chat- bot might be programmed with an algorithm that rejects all applicants who mention in conversa- tion with the chatbot that they have a gap in their employment history. If this gap in employment is due to a medical condition, then the chatbot may function to screen out the applicant unlawfully due to their disability, even though the individual would be capable of performing the essential functions of the position for which they were applying with (or without) an accommodation.
Finally, the EEOC guidance reminds employ-
Tools
Continued on page 23
AMELIA HOLSTROM
TREVOR BRICE
“The EEOC warns employers that without proper safeguards, a software- based screening tool may unintentionally (or intentionally) screen out individuals with disabilities.”
But could the use of this software be creating legal liability for your business? Maybe.
In May, the Equal Employment Opportunity Commission (EEOC), the federal agency that
not have a process for individuals to request accommodations that may be necessary for an individual with a medical condition to be fairly and accurately rated by the software or use the
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