Constangy partner Robin Shea authored an article published by Workflow on Sept. 20, 2022 discussing how employers can avoid potential legal pitfalls when using artificial intelligence to make hiring decisions.

“AI algorithms are often set up to select applicants with traits associated with employees who have been good for the employer in the past. That sounds like a good idea at first, but algorithms that look at ‘who’s been good in the past’ may still skew heavily toward white male applicants,” Shea explained. “It has also been known to ‘select out’ women with college majors in predominantly ‘female’ subjects and older applicants whose applications show that they have been in the workforce for a long time. It has also been known to sometimes discriminate against individuals with disabilities.”

To address these issues, the U.S. Equal Employment Opportunity Commission (EEOC) issued helpful guidance related to the use of AI and algorithms and compliance with the Americans with Disabilities Act (ADA). Among the recommendations from the EEOC are to offer reasonable accommodations to applicants with disabilities to apply for a job in the first place, train hiring personnel to look for other ways of assessing applicants if the tools screen them out because of disabilities, and having the AI vendor refer requests for reasonable accommodation to the employer immediately.

For the full article and more recommendations from the EEOC, please click here.


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