This is the last blog in the series on the EEOC’s Technical Guidance: The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees. The Guidance ends with the reminder that employers utilizing these Automated Employment Decision-Making Tools (AEDT) can violate the Americans with Disabilities Act (ADA) if the tools (1) pose Disability-Related Inquiries, or (2) conduct a Medical Examination.
The EEOC suggested that the liability flowing from the use of these tools rests with the employers who utilize such tools - not the developers. This makes sense, as the ADA applies to “covered entities,” and a developer of a tool is not a covered entity under the statute. With that being said, prudent developers will design these tools with the ADA in mind. While liability may rest with the employer, no vendor wants its name included in a complaint on the public docket, not to mention that it is not exactly a wise marketing strategy to develop tools that can expose their users to ADA liability.
General ADA Prohibition
The ADA is clear:
A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
Prohibition Applies to Employers and Labor Organizations
As discussed above, the statute prohibits “covered entities” from conducting such inquiries and examinations. A covered entity is an employer, employment agency, labor organization or a joint labor-management committee. Notice that the definition does not include developer of an employment tool.
NOTE: The ADA covers employee examinations and inquiries before and after hire. This blog focuses on such inquiries conducted before the individual is hired.
Prohibited Disability Related Inquiries
The term “Disability-Related Inquiry” is not defined in the statute or regulations. However, the 2000 Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA and the 1995 Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations provide a definition for that term. A “Disability-Related Inquiry” is a question or a series of questions that is likely to elicit information about a disability. (NOTE: We discussed the definition of a Disability here.) Here are examples of questions and requests that the EEOC considers violative inquiries:
- Have you ever had a disability?
- Do you have a disability?
- How did you become disabled?
- What is the nature of the disability?
- What is the severity of the disability?
- Asking the applicant to provide medical documentation regarding the disability.
- Asking a co-worker, family member, doctor, or another person about the disability.
- What is your genetic information?
- Have you ever applied for or received workers’ compensation?
- Are you currently taking any prescription drugs or medications?
- Have you taken any prescription drugs or medication in the past?
Remember, these are examples only of violative questions. Just like employers must train their HR employees in the ADA, the AEDT vendors must be well versed in the ADA.
Acceptable Pre-Employment Inquiries
The ADA does allow employers to conduct pre-employment inquiries that relate to the applicant’s ability to perform job-related functions. Employers may ask candidates to describe or demonstrate how, with or without reasonable accommodations, the applicant would be able to perform the job-related functions. As a first step to conduct a lawful pre-employment inquiry, therefore, the employer must have up-to-date and detailed job descriptions that identify the essential functions of the job.
The most effective AEDT’s will be tailored to a specific job opening using the job descriptions for those positions. For this model to work, employers must work with their AEDT developers to develop specific inquiries for each job position. AEDT developers cannot use the same pre-employment inquiry for each position, as the essential functions will inevitably vary from job to job.
Finally, there are no bright lines that employers can consult to determine whether a specific AEDT inquiry does or does not violate the ADA. Prudent employers will consult with experienced employment counsel before proceeding these tools.
The term “Medical Examination” is also not defined in the ADA or the regs. Once again, however, the 2000 EEOC Enforcement Guidance and the 1995 Guidance provide us with guidance on the meaning of this term. According to those guides, a Medical Examination is a procedure or test that seeks information about an individual’s physical or mental impairments or health. When determining whether an examination is medical, the following factors will be considered:
- Whether the test is administered by a health care professional;
- Whether the test is interpreted by a health care professional;
- Whether the test is designed to reveal an impairment of physical or mental health;
- Whether the test measures an employee’s performance of a task or physiological response to performing the task;
- Whether the test is given in a medical setting;
- Whether medical equipment is used.
Developers and employers should consult with counsel when evaluating whether the AEDT constitutes a Medical Examination. For instance, many employers use personality tests. The EEOC has found that tests designed to measure traits like honesty, preferences and habits are not Medical Examinations under the ADA. With that being said, the Medical Examination definition is a balancing test, and it is easy to imagine test intended to be a personality test that crosses the line and becomes a Medical Examination. Prudent employers will consult with counsel on this topic.
Artificial Intelligence is a powerful tool and one that with human oversight can facilitate diversity, efficiency, and successful hiring results. We are here to counsel developers and employers alike on the employment discrimination implications of the AI.
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