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July 1, 2022

EEOC Issues Guidance on Preventing Discrimination in Hiring Practices

If you are an employer utilizing algorithms and artificial intelligence to assist in your hiring practices, you’ll want to review the recently published guidelines offered by the Equal Employment Opportunity Commission (EEOC).

Many employers are increasingly using hiring technologies to help in new employee selection. The following are examples of technology used by employers: 

  • 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

Many of these technologies use algorithms[i] or artificial intelligence[ii] built into their software to assist in searching resumes or evaluate an applicant’s skills and abilities. While technology can be a useful tool, it can also result in unlawful discrimination against certain groups of applicants, including those with disabilities.

Both state and federal laws protect against discrimination in the workplace based on protected classifications. The California Fair Employment and Housing Act (FEHA) and Title VII of the Civil Rights Act of 1965 both prohibit discrimination based on protected classifications. Additionally, at the federal level, the Americans with Disabilities Act (ADA) and its amendments, prohibit discrimination in the workplace based on an individual’s actual or perceived disability.

Specifically, these prohibitions extend to employer practices when it comes to selecting, testing or promoting employees. Employers who choose to use hiring technologies are responsible for ensuring that such use does not cause unlawful discrimination because of an actual or perceived disability.

Like many aspects of state and federal law, an employer cannot delegate its compliance responsibilities to a third party, in this case, the provider or creator of the technology it uses to enhance its hiring practices. This means that even where an employer does not intend to discriminate, its use of a hiring technology may still lead to claims of unlawful discrimination. A classic example is where the employer uses a hiring technology to compare applicants to current successful employees. Such evaluations can easily overlook or discount employees or applicants with disabilities as this segment of the workforce has typically been overlooked and in some cases excluded from certain types of jobs.

To lessen the risk associated with hiring technologies employers should consider the following:

  1. Carefully evaluate all information used to build-out a hiring technology. Consult with the creator/seller of any third-party platform used to supplement or assist in the organization’s hiring practices making sure issues associated with exclusion have been addressed.
  2. Make sure that the qualification standards used to evaluate applicants/employees is job-related and consistent with business necessity. Avoid using subjective criteria when evaluating applicants or employees.
  3. Remember that employers have a duty to provide reasonable accommodations that will allow applicants or employees with disabilities to meet qualification standards, unless doing so would be an undue hardship (e.g., undue hardship is always something more than mere inconvenience).
  4. Employers should monitor and conduct internal hiring audits to determine how current hiring practices/technologies are being used and whether they are disproportionately impacting those with disabilities (or those falling into any other protected classification such as race, gender or national origin).
  5. Notify applicants of the use of technology; how it is being used and how the applicant will be evaluated.
  6. Provide clear instructions on how applicants/employees can request a reasonable accommodation.  

For additional information on how algorithms and artificial intelligence can impact hiring decisions:

Members with questions about the use of technology in hiring and promoting employees should contact Western Growers.

[i] A set of predetermined steps used by a computer to accomplish a task.

[ii] Using a computer to complete a task usually performed by a person.