At our 31st Annual Labor and Employment Law Seminar, there was a panel discussion regarding the War for Talent.  As part of that presentation, we reviewed some of the new and creative application processes that employers are adopting to help attract, screen and onboard employees more effectively and efficiently. We also discussed the use of Artificial Intelligence, AI, in the applicant review process.

AI is being used to solve a number of problems for organizations of every size. More and more, AI is being used in Human Resources settings, and there is no doubt that we will continue to see a proliferation of AI tools.  These are great tools, so it’s all good, right?

Well, if AI perpetuates some of the same biases that have long been problematic for regular human intelligence, then employers will continue to face disparate treatment and disparate impact claims.  These are exactly the concerns that were recently noted by the Equal Employment Opportunity Commission.  On May 12, 2022, the EEOC issued guidance regarding the Americans with Disabilities Act and the use of software, algorithms and artificial intelligence to assess job applicants and employees.

The EEOC’s guidance outlines three areas where AI could potentially violate the ADA:

  1. The employer does not provide a reasonable accommodation to allow an applicant to be rated fairly by AI;
  2. The employer relies on AI that screens out qualified applicants with a disability, intentionally or unintentionally; or
  3. The employer utilizes an AI tool that makes an unlawful disability-related medical inquiry.

Employers adopting AI in the hiring process need to be aware of these risks and must be sure to discuss how they will be addressed with the vendors offering these products and services.

This same topic was discussed at a recent Employment Law Alliance conference, where Keith Sonderling of the EEOC offered some helpful insights.  Mr. Sonderling emphasized that the EEOC is trying to be proactive in providing guidance regarding the use of AI in this setting, noting that there are already thousands of AI tools available for use at every stage of employee life cycle and compliance is the goal for so many employers and service providers. Understanding the legal issues and how employers can work to ensure compliance on the front end is a better outcome for all involved.

Keep in mind that state laws may also impact your organization’s use of automated decision tools as well. We will be sure to keep you up to date as additional guidance is issued and as the use of AI in the hiring process continues to develop.

And, if you have any questions about rolling out AI to help some humans in Human Resources, please do not hesitate to give us a call.