From Rocky Mountain ADA Center: For Complete Post, click here…
Businesses implement various technologies to streamline processes and increase efficiency. One efficiency-focused technology is the use of artificial intelligence (AI). AI is computer software algorithms designed to imitate human thinking and decision-making. In recent years, AI has been used in the employee hiring process. Increasingly, AI is replacing human interaction and decision-making in tasks such as resume screening, interviewing, and hiring applicants. While AI can certainly help make these processes more efficient and take up less human time, it is not without cost. One such cost is the potential for bias and discrimination. AI discrimination affects all protected classes, but here we specifically analyze how AI can discriminate against people with disabilities in the hiring process. We begin by looking at the Americans with Disabilities Act (ADA) framework for discrimination in hiring. Then, we review several examples of AI discrimination in the hiring process and analyze why AI technology is particularly troublesome for people with disabilities.
For purposes of this report, we recognize our charge to address ADA employment discrimination case law specific to federal HHS Region 8 (the region served by the Rocky Mountain ADA Center). Unfortunately, there is no AI-specific employment discrimination case law available in the Circuit Courts that serve Region 8 so we will consider cases from other parts of the country. The major points in these cases are outlined or affirmatively recognized by the United States Supreme Court which creates binding rulings for all U.S. regions.
To better understand how AI might introduce bias or discrimination in the hiring process, we first review how hiring discrimination is addressed by the ADA. The ADA maintains, “no covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees.” The Court has differentiated discrimination claims of this type by whether they are disparate impact claims or disparate treatment claims, but has held that both are addressable under the ADA.
There are several clauses in the ADA that protect applicants with disabilities from disparate impact:
The ADA prohibits:
(1) limiting, segregating, and classifying an applicant or employee “in a way that adversely affects” their opportunities or status because of their disability; (2) contractual or other relationships that have the effect of disability discrimination; and, (3) “utilizing standards, criteria, or methods of administration” that have the effect of disability discrimination.
To be successful, a disparate impact claim would need to prove that the business has violated one of the clauses. The first and third clause would likely be the easiest to prove in an AI discrimination case because AI systems generally classify and/or categorize applicants via standards and criteria coded into the AI system itself. These standards can create conditions that introduce discrimination based on disability rather than competency. For example, an applicant who uses speech recognition software for computer input may be inadvertently discriminated against by an AI system if an AI- driven application task requires timed keyboard input or is based on some measure of physical keyboard proficiency. If keyboard input speed or proficiency is directly related to an essential job function, this would be appropriate. If not, then this could be an explicit form of discrimination. Or, if an AI algorithm somehow “discerns an applicant’s physical disability, mental health or clinical diagnosis”vi this would constitute an unallowable and illegal assessment standard under federal ADA law.
To show disparate treatment, whereby “an employer treats a group of people less favorably than others because of a protected characteristic,” an applicant with disabilities must use the McDonnell Douglas proof mechanism.