Employers are being warned that the use of algorithms and AI technology in hiring could violate the Americans with Disabilities Act

• The technologies could screen out people with disabilities who are able to do the job, the DOJ and EEOC said.
• Facial and voice analysis technologies may rule out qualified people with autism or speech impairments.

The use of algorithms and AI technology in hiring workers could risk violating the Americans with Disabilities Act, employers have been warned.

Increasing use of algorithm and AI tools by employers during hiring processes, in performance monitoring, and in determining pay or promotions, could result in discrimination against people with disabilities, the Department of Justice and Equal Employment Opportunity Commission said in a joint statement Thursday, warning it would be a violation of the act.

"Algorithmic tools should not stand as a barrier for people with disabilities seeking access to jobs," Attorney General Kristen Clarke of the Justice Department's Civil Rights Division said in a statement.

While the ADA is in place to protect disabled citizens, according to the US Bureau of Labor Statistics, only 19% of disabled Americans were employed in 2021.

EEOC chair Charlotte Burrows said last year that about 83% of employers and 90% of Fortune 500 companies use automated tools in their hiring processes, Bloomberg Law reported.

The DOJ and EEOC said that people whose disabilities would not affect their ability to do the job could be screened out by the use of algorithms and AI technology in the hiring process. They cited as an example the termination of an automated interview with an applicant in a wheelchair if the applicant answered "no" to being asked if they could stand for long periods of time.

Facial and voice analysis technologies may rule out qualified people with autism or speech impairments, the departments said, while personality tests could screen out those with mild mental disabilities.

"This is essentially turbocharging the way in which employers can discriminate against people who may otherwise be fully qualified for the positions that they're seeking," Clarke told NBC News.

The EEOC released a report which includes tips for employers to ensure they comply with the ADA, and for disabled applicants and employees who may have had their rights under the act violated.

"New technologies should not become new ways to discriminate. If employers are aware of the ways AI and other technologies can discriminate against persons with disabilities, they can take steps to prevent it," Burrows said in a statement.

The announcement comes after the EEOC launched an investigation in October 2021 to look into how algorithms and AI technology impact fairness in employer decision-making.

The body filed its first algorithmic discrimination case on May 5, suing a company that the EEOC said had used software that automatically rejected applicants over a certain age.