As artificial intelligence becomes increasingly integrated into various employment-related technologies, it is important for employers to consider the potential impact on their obligations to prevent discrimination in the workplace. The Equal Employment Opportunity Commission (EEOC) has released guidelines on the use of software, algorithms, and AI to assess job applicants and employees as part of an ongoing effort by the EEOC to educate employers about the application of equal employment opportunity laws.  

With various computer-based tools on the market designed to assist employers in all aspects of the employer-employee relationship, employers may not be aware  of how the AI technology that is making their lives easier could also be impacting their obligations to prevent discrimination in the workplace.  

Various algorithmic decision-making processes can be used at different stages of employment, including hiring, performance evaluation, promotion and termination. Some of the most common algorithmic decision making processes include: 

• Resume scanners that prioritize applications using certain key words. 
• Employee monitoring software that rates employees based on keystrokes or other factors. 
• Chatbots or virtual assistants that ask job candidates about their qualifications; rejecting those that do not meet pre-defined requirements. 
• Video interviewing software that evaluates candidates based on facial expressions and speech patterns; and 
• Testing software that provides “job fit” scores or perceived “cultural fit” based on performance.  

However, it is important for employers to keep a few key points in mind when utilizing AI to make employment decisions: 

• Inform applicants/employees of the steps involved in the evaluation process and ask if they require any reasonable accommodation. 

• Make sure that the algorithmic decision-making tool has been designed to be accessible to individuals with many different kinds of disabilities to minimize the chance that individuals with different kinds of disabilities will be unfairly disadvantaged in the assessment process.   

• Provide clear descriptions of the algorithm’s purpose, method, and any variable or factors that may affect the rating.  

• Before purchasing any algorithmic decision-making tools, be sure to ask the vendor to confirm that the tool does not ask applicants/employees questions that are likely to elicit information about a disability or seek information about an individual’s physical or mental impairments or health, unless the inquiry is related to a request for reasonable accommodation.