How Can AI Recruitment Tools Comply with the ADA and Avoid Disability Discrimination?

AI recruitment tools can streamline hiring but risk violating the ADA through unintentional disability discrimination if not carefully managed. The Equal Employment Opportunity Commission (EEOC) provides clear guidance to help employers leverage AI's benefits while mitigating bias, emphasizing that employers are ultimately accountable for their hiring decisions, even when using third-party algorithms. Proactive steps, including thorough vendor vetting and offering reasonable accommodations, are essential for compliance.

What is the Risk of Disability Discrimination in AI-Driven Hiring?

The primary risk lies in an AI tool causing an unlawful "screen-out." This occurs when an algorithm prevents a job applicant with a disability from meeting a selection criterion, even if that criterion seems neutral. For example, a tool might automatically screen out candidates with significant employment gaps. As explained by EEOC senior attorney advisor Sharon Rennert, this could unfairly disqualify a highly qualified individual who had a gap due to a mental health condition two decades ago but has had uninterrupted employment since. The tool, designed to find profiles matching current successful employees, may not account for candidates who could perform successfully with a reasonable accommodation. The problem often stems from programming bias or the AI learning bias from historical company data that reflects past discriminatory patterns.

How Can Employers Mitigate AI Bias Against People with Disabilities?

To minimize disadvantaging persons with disabilities, employers should adopt a multi-layered approach based on EEOC recommendations. First, use tools that have been pre-tested on individuals with a wide range of disabilities, including mental health conditions. Second, ensure the tool only measures abilities and skills that are essential functions of the specific job. Third, measure these necessary skills directly rather than relying on correlated characteristics. Based on our assessment experience, the most effective strategy is to constantly question vendors about how their algorithms work and what they actually measure. Employers must also institute positive actions, such as clearly notifying all applicants that reasonable accommodations are available and providing accessible instructions for requesting them.

What Steps are Required if an AI Tool Screens Out a Person with a Disability?

If a tool screens out an individual based on a disability, the employer must justify its use. This involves answering three key questions rooted in the Americans with Disabilities Act (ADA):

1. Is applying the tool to this individual job-related and consistent with business necessity?
2. Does the requirement being measured relate to an essential function of the position?
3. Does the requirement directly measure the ability to perform the essential function?

If the answer to any of these is "no," the employer cannot apply the disqualifying measurement. Furthermore, employers are accountable for all hiring decisions made using AI, regardless of whether a third-party provider manages the tool.

What are Best Practices for Transparency and Accommodation in AI Recruitment?

Transparency is critical for compliance and building trust. Employers should notify applicants early in the process—preferably in large or bold letters at the beginning of an application form—that an AI tool will be used. This notice should be in plain language and accessible formats, describing:

• The traits the algorithm assesses.
• The assessment method.
• Factors that may affect the rating.
• Any known disabilities that might cause a lower rating.

Providing this information helps individuals with disabilities determine if they need to request a reasonable accommodation, creating a fairer process. By taking these diligent precautions, organizations can harness AI to make less biased, more effective, and legally compliant recruiting decisions.