Businesswoman listening to disabled job candidate
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Employers using artificial intelligence tools in the hiring process could be guilty of disability discrimination, according to the federal government.

The U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice released technical assistances document Thursday regarding disability discrimination when employers use artificial intelligence and other software tools to make employment decisions.

Computer-based tests or software increasingly are used by employees in hiring new employees, monitoring performance and determining wages or promotions. Many of those tools use algorithms or AI, potentially resulting in unlawful discrimination against people with disabilities in violation of the American with Disabilities Act. 

Such tools already are in use by senior living employers. McLean, VA-based Sunrise Senior Living, for instance, has used AI to improve its employee retention rates. Benchmark Senior Living of Waltham, MA, announced in 2018 that it was turning to AI to recruit and retain workers. Both companies used Arena Analytics, which specializes in using predictive analytics and AI to help companies attract and retain workers. Other senior living clients of Baltimore-based Arena, according to the company website, include The Arbor Company and Brightview Senior Living. 

Arena Analytics President and CEO Myra Norton told McKnight’s Senior Living that she applauded the agencies’ efforts to address possible disability discrimination in AI technology.

“Our company was founded with a mission to reduce bias and increase fairness in the hiring process, and we have created a powerful bias mitigation model that is a core part of the Arena platform,” Norton said. “Our technology has helped our partners meet and exceed EEOC requirements, and we are committed to constantly monitoring and improving our model for any signs of bias, including any issues related to disability discrimination.”

The EEOC’s technical assistance document is meant to help employers prevent discrimination against job seekers and employees with disabilities. The document is part of the agency’s Artificial Intelligence and Algorithmic Fairness Initiative to ensure that the use of software in employment decisions complies with federal civil rights laws. 

The document provides guidance on practices to reduce the likelihood of disability discrimination, including providing reasonable accommodations when using AI, having safeguards to prevent screening applicants with disabilities out of a job or promotion, and avoiding disability-related inquiries or medical exams. 

The DOJ, in its guidance, offers a broad overview of employee rights and responsibilities, including examples of the types of technological tools employers are using, considerations on how different tools might affect different disabilities, employer obligations when using algorithmic decision-making tools, and when to provide reasonable accommodations.

“If employers are aware of the ways AI and other technologies can discriminate against persons with disabilities, they can take steps to prevent it,” EEOC Chair Charlotte A. Burrows said in a statement.