EEOC Guides Convo Between HR and AI Professionals on ADA Reasonable Accomodations

This is the third blog in the series on the EEOC’s Technical Guidance: The Americans with Disabilities Act adn the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees. As we previously wrote, the purpose of this series is to bridge the gap between the AI Vendors and the Human Resources professionals. The first blog was geared toward the HR Professional as it discussed general AI themese.

The second blog was geared for the AI Professional as it discussed ADA basics. This blog is geared for everyone (AI and HR). The EEOC begins its Technical Guidance by providing “Promising Practices” for employers as they relate to “Reasonable Accommodations” for employees and applicants who are subject to an Automated Employment Decisionmaking Tool (AEDT). As discussed below, prudent employers will engage AI vendors to mitigate exposure to liability under the ADA.

For the AI Folks reading this blog, let’s start out with some ADA basics…

reasonable accommodaton under the ada

AI folks must be aware that AEDT’s can violate the ADA when they faile to accommodate an individual with a disability. Check out our second blog on the definiton of a disability under the ADA.

Qualified Individuals are Eligible for a Reasonable Accommodation

The law is clear that an employer cannot discriminate against a QUALIFIED INDIVIDUAL on the basis of a disability in regard to a job appliation procedure, the hiring, advancement or discharge of employees, employee compensation, job training and other terms, conditions and privileges of employment.

The next question is, who is a “Qualified Individual? (QI)”

A Qualified Individual is someone who can with or without a REASONABLE ACCOMMODATION perform the essential functions of the position that the individual holds or desires.

This means that if an individual is able to perform the essential functions of the job with a reasonable accommodation, then that person is QUALIFIED to do the job. If an individual is unable to perform the essential functions of a posiiton even with accommodations, then that person is NOT QUALIFIED to perform the essential functions of the job.

PRACTICE NOTE: AI vendors working with employers for recruitment for a specific position should collaborate and have an understanding as to the essential functions of the job. “Essential Functions” is a legal term of art. Prudent employers will take care in crafting job descriptions that accurately describe these functions.

What is a Reasonable Accommodation ?

The federal law and related regulations provide examples and guidance as to what accomodations may be reasonable. However the ADA was last revised in 2008. Needless to day, the list of accommodation examples does not include AI or Machine Learning. However, the regulations are clear that “reasonable accommodation” means, among other things: [M]odifications and adjustments to a job applicantion process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires.

This is a big deal. Employers and AI Professionals have the task of ensuring that the hiring and promotion process does not exclude individuals with disabilitites.

eeoc’s promising practices for reasonable accommodations

The EEOC offers a few starting points for AI and HR pros:

  • Employers should make the application/promotion process known to all employees/applicants.

    This way, the individuals are made aware of the actual process and they can determine whether they need to request for an accommodation. For instance, some hiring processes require the use of a keyboard, track pad or manual input of information Even more, in addition to these manual inputs, some processes have a time limitation for each step of the process. In these situations, an indivdiual with a disability related to manual dexterity may not be able to complete this process and thus would be excluded from consideration for the job/promotion.

    When the process is explained at the outset, it allows for individuals to understand that they will need an accommodation.

    PRACTICE NOTE: Prudent AEDT developers will work with employers to ensure that all applicants/employees are aware of the process. Employers should heed the EEOC’s call that this is important.

  • Employer should employees/applicants whether they need a reasonable accommodationg to complete the process.

    In addition to the above, employers should also ask all applicants/employees whether they need an accommodation. These first two bullet points are interrelated. If an applicant/employee understands the steps to the process, then both sides can work together to achieve a reasonable accommodation.

    PRACTICE NOTE: Prudent HR professionals should have a basic understanding the AEDT and its capabilitites as it relates to providing an accommodation.

  • Develop Alternative Ways to Rate Job Applicants and Employees

    Employers and AEDT vendors should have a healthy discourse as it relates to the capabilities of the technology for accommodations. AI vendors must be aware of how their technology could unfairly disadvantage groups of individuals. It is crucial for AI pros to undrstand the ADA and the protected classes. Now, more than ever we need Employers and AI vendors to work together. Employers must understand the technology, so that they can asess the risk of exclusion. AI vendors must understand the protected classes, so that they can develop alternative processes.

  • Train Staff

    HR Departments should always be trained in recognizing requests for accommodations and processing same. However, HR Departments will need to kick their training into a new gear as these AEDT’s come onto the scene.

  • Draft Solid and Creative Contracts

    The EEOC actually signals to employers what they can do when communicating with AI vendors. The EEOC offers two ideas: (1) Employers can include in their contracts with AI vendors that the vendor will forward all requests for accommodations promptly to the Employer to be processed; or (2) the employer can contract with the employer to provide reasonable accommodations on the employer’s behalf.

    Employers and AI folks should consult with respective counsel to explore how to best craft these contracts.

  • Use AEDT that are Designed to be Accessible to Individuals with as Many Different Kinds of Disabilitites

    Again, AI vendors need to be aware of the various types of disabilitites under the law. The regulations, statutes and case law are ripe with examples. AI folks should consult with counsel when creating these tools and when crafting them for specific clients. The most effective tools will mitigate exposure for the customer/employer.

  • Inform all Applicants/Employees that Reasonable Accommodations are Available and Provide Clear and Accessible Instructions for Same

    This is a not-so-subtle message from the EEOC. All AEDT tools should have clear and conspiciuos notice that (1) individuals can request an accomodation, and (2) there must be clear instructions on how to request such accommodation.

  • Describe in Plain Language and in Accessible Format how the AEDT Works

    Applicants/employees should be made aware of the following: (1) the traits that the alogrithm is designed to assess, (2) the methods by which the traits are assessed and (3) the variables/factors that may affect the rating.

    Again, the EEOC is being pretty clear. Based on this “suggestion” it would seem that AEDT’s shoudl include some type of notice that includes the above-referenced descriptors. Prudent employers would include the above information in job postings.

  • Ensure the AEDT Only Measures the Abilitites and Qualifications Truly Necessary for the Job

    The EEOC suggests that the employers should ensure that the AEDT only measure the abilitites and qualifications that are truly necessary for the job. This makes sense. There is no need to measure abilitites that are unrelated to the job. For example, if there is a position that is purely a desk job, there is not need to screen or test for an individual’s ability to lift boxes. This is why it is crucial for the AI team and the HR team to collaborate. It is especically important for the employer have updated job descriptions that list the essential functions of the job.

  • Ensure that the Abilitites/Qualifications are Measured Directly- NOT by Way of Correlating Scores with Abilities

    EEOC friendly AEDT’s will measure the abilitites and qualifications directly. In other words, they will not use scores or characteristics that are correlated with a certain ability/qualification. Admittedly, this is a big vague. It is unclear as to how an AEDT can measure an ability or qualification directly. Criteria like work experience, or education level is ceratinly easy to measure directly. Characteristics, such as communication or leadership style may be different to measure directly.

  • Employers Should Have A Healthy Dialogue with AEDT Vendors

    The EEOC suggests that employers confirm with vendors that the AEDT does not ask the job applicant/employee questions that are likely to elicit information about a disability. Employers should consult with counsel on the ADA’s parameters on medical inquiries and employers’ right to ask for medical information. On the flip side, AEDT devlopers should be well-versed in what a medical inquiry is under the ADA. After all, AEDT’s that expose an employer to liabilty will not be in the business for long.

who is liable for failure to accommodate?

As dicsused in our previous blog employers may be responsible for providing reasonable accommodations when they rely on a software developed by a completely different entity. The Commission expalined that if an applicant requests an accommodation from a vendor, and the vendor does not provide the reasoanble accommodation, then the employer coud be liable for failure to accommodate. The EEOC goes even further to say that in that scenario, the employer could be liable even if they were completely unaware of the request.

While this seems crazy, it is actually in line with how liabilty has be distributed in the past. For instance, if a human being (Director of Recruitment) was in charge of recruitment and worked for the employer and failed to provide a reasonable accommodation, then the employer (NOT the human being) would be on the hook for failure to accommodate.

The same is true when employers are hit with litigation related to ADA website accessbility claims. In these situations, individuals make a claim against a business or employer that their website is not ADA compliant. When these claims are made, the vendor who made the website is not liable under the ADA, rather the business who is using the website is on the hook.

The same seems to be true here with AEDT’s. With that beign said, at the very least, AI vendors can expect to be dragged into litigation as witnesses.

BOTTOM LINE

This is a rapidly evolving area of employment law. The EEOC is giving AI and Machine Learning a ton of attention and employers must be aware of same. AI developers and HR professionals alike should collaborate with each other counsel to mitigate discrimination.

Susie Cirilli