Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring

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Algorithms, Artificial Intelligence, and
Disability Discrimination in Hiring
This guidance explains how algorithms and artificial intelligence can lead to disability
discrimination in hiring.
The Department of Justice enforces disability discrimination laws with respect to state
and local government employers. The Equal Employment Opportunity Commission
(EEOC) enforces disability discrimination laws with respect to employers in the private
sector and the federal government. The obligation to avoid disability discrimination in
employment applies to both public and private employers.
How employers use algorithms and artificial
intelligence
Employers, including state and local government employers, increasingly use
hiring technologies to help them select new employees.
For example, employers might use technology:
• 	to show job advertisements to targeted groups;
• 	to decide if an applicant meets job qualifications;
• 	to hold online video interviews of applicants;
• 	to use computer-based tests to measure an applicant’s skills or abilities; and
• 	to score applicants’ resumes.
Many hiring technologies are software programs that use algorithms or artificial
intelligence. An algorithm is a set of steps for a computer to accomplish a task—for
example, searching for certain words in a group of resumes. Artificial intelligence
generally means that a computer is completing a task that is usually done by a person—
for example, recognizing facial expressions during a video interview.
While these technologies may be useful tools for some employers, they may also
result in unlawful discrimination against certain groups of applicants, including
people with disabilities.

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How the ADA protects against disability
discrimination in hiring
The Americans with Disabilities Act (ADA) is a federal law that seeks to remove barriers
for people with disabilities in everyday activities, including employment.
The ADA applies to all parts of employment, including how an employer selects,
tests, or promotes employees. An employer who chooses to use a hiring
technology must ensure that its use does not cause unlawful discrimination on the
basis of disability.1
The ADA bars discrimination against people with many different types of disabilities.
Some examples of conditions that may be disabilities include: diabetes, cerebral palsy, deafness,
blindness, epilepsy, mobility disabilities, intellectual disabilities, autism, and mental health
disabilities. A disability will affect each person differently.
When designing or choosing hiring technologies, employers must consider how their tools
could impact different disabilities.
For example, a state transportation agency that designs its hiring technology to avoid
discriminating against blind applicants may still violate the ADA if its technology discriminates
against applicants with autism or epilepsy.
When employers’ use of hiring technologies may
violate the ADA
Employers must avoid using hiring technologies in ways that discriminate against
people with disabilities. This includes when an employer uses another company’s
discriminatory hiring technologies.2
Even where an employer does not mean to discriminate, its use of a hiring technology
may still lead to unlawful discrimination. For example, some hiring technologies try to
predict who will be a good employee by comparing applicants to current successful
1 See 42 U.S.C. § 12112; 29 C.F.R. § 1630.4.
2 See 42 U.S.C. § 12112; 29 C.F.R. §§ 1630.4, 1630.6.

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employees. Because people with disabilities have historically been excluded from many
jobs and may not be a part of the employer’s current staff, this may result in
discrimination. Employers must carefully evaluate the information used to build their
hiring technologies.
Screening Out People with Disabilities
Employers also violate the ADA if their hiring technologies unfairly screen out a
qualified individual with a disability. Employers can use qualification standards
that are job-related and consistent with business necessity. But employers must
provide requested reasonable accommodations that will allow applicants or
employees with disabilities to meet those standards, unless doing so would be an
undue hardship. When designing or choosing hiring technologies to assess
whether applicants or employees have required skills, employers must evaluate
whether those technologies unlawfully screen out individuals with disabilities.3
Employers should examine hiring technologies before use, and regularly when in use, to
assess whether they screen out individuals with disabilities who can perform the
essential functions of the job with or without required reasonable accommodations.
For example, if a county government uses facial and voice analysis technologies to
evaluate applicants’ skills and abilities, people with disabilities like autism or speech
impairments may be screened out, even if they are qualified for the job.
Some employers try to evaluate their hiring technologies to see how they impact certain
groups, like racial minorities. Employers seeking to do the same with respect to people
with disabilities must keep in mind that there are many types of disabilities and hiring
technologies may impact each in a different way.
3 See 42 U.S.C. § 12112(a), (b)(2), (b)(5), (b)(6); 29 C.F.R. §§ 1630.4, 1630.6, 1630.9, 1630.10.

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How to avoid disability discrimination when using
hiring technologies
Testing technologies must evaluate job skills, not disabilities.
Some hiring technologies require an applicant to take a test that includes an algorithm,
such as an online interactive game or personality assessment. Under the ADA,
employers must ensure that any such tests or games measure only the relevant skills
and abilities of an applicant, rather than reflecting the applicant’s impaired sensory,
manual, or speaking skills that the tests do not seek to measure.
For example, an applicant to a school district with a vision impairment may get passed
over for a staff assistant job because they do poorly on a computer-based test that
requires them to see, even though that applicant is able to do the job.
If a test or technology eliminates someone because of disability when that person can
actually do the job, an employer must instead use an accessible test that measures the
applicant’s job skills, not their disability, or make other adjustments to the hiring process
so that a qualified person is not eliminated because of a disability. 4
In addition, employers must ensure that they do not unlawfully seek medical or
disability-related information or conduct medical exams through their use of hiring
technologies.5 For more information about this, see the EEOC’s Enforcement Guidance:
Preemployment Disability-Related Questions and Medical Examinations.
Reasonable accommodations for applicants with disabilities.
The ADA requires that employers provide reasonable accommodations to individuals
with disabilities, including during the hiring process, unless doing so would create an
undue hardship for the employer.6
4 See 42 U.S.C. § 12112(b)(5), (b)(7); 29 C.F.R. §§ 1630.9, 1630.11.
5 See 42 U.S.C. § 12112(d); 29 C.F.R. § 1630.14.
6 See 42 U.S.C. § 12112(b)(5); 29 C.F.R. § 1630.9.

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A reasonable accommodation is a change in the way things are usually done to give equal
opportunities to a person with a disability in applying for a job, performing a job, or accessing
the benefits and privileges of employment.
Examples of accommodations include allowing use of assistive equipment, modifying policies, or
making other changes to the way the hiring process or job is performed.
For example, if a city government uses an online interview program that does not work with a
blind applicant’s computer screen-reader program, the government must provide a reasonable
accommodation for the interview, such as an accessible version of the program,7 unless it would
create an undue hardship for the city government.
Some examples of practices that employers using hiring technologies may need to
implement to ensure that applicants receive needed reasonable accommodations
include:
• 	telling applicants about the type of technology being used and how the
applicants will be evaluated;
• 	providing enough information to applicants so that they may decide whether to
seek a reasonable accommodation; and
• 	providing and implementing clear procedures for requesting reasonable
accommodations and making sure that asking for one does not hurt the
applicant’s chance of getting the job.
What to do if your rights have been violated or you
want to find out more
If you believe your employment rights have been violated because of a disability and
you want to make a claim of employment discrimination, you can file a “charge of
discrimination” with the EEOC. A discrimination charge is a signed statement asserting
7 Existing technical standards provide helpful guidance concerning how to ensure the accessibility of
website features. These include the Web Content Accessibility Guidelines (WCAG) and the Section 508
Standards, which the federal government uses for its own websites. More information is in this guidance
document. The employer and the individual with a disability should engage in an informal process to
clarify the applicant’s needs and to identify a reasonable accommodation.

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that an organization engaged in employment discrimination. Information on the EEOC
charge process is available here.
If you believe that you or someone else was discriminated against based on a disability
because of a state or local government employer’s use of a hiring technology, you can
also file a complaint with the Department of Justice. Information on the DOJ complaint
process is available here.
For more detail on the topics addressed here and the impact of software, algorithms,
and artificial intelligence on employees, please see the EEOC’s technical assistance
document, The Americans with Disabilities Act and the Use of Software, Algorithms, and
Artificial Intelligence to Assess Job Applicants and Employees. Anyone with questions
about the impact of software, algorithms, and artificial intelligence on employees can
reach the EEOC at 1-202-921-3191 (voice), 1-800-669-6820 (TTY), or 1-844-234-5122
(ASL Video Phone).
In addition, anyone can call the ADA Information Line at 1-800-514-0301 (voice) or 1-
800-514-0383 (TTY) with questions about their rights or responsibilities under the ADA.
ADA Specialists are available to answer questions on Monday, Tuesday, Wednesday, and
Friday from 9:30 a.m. to 12:00 p.m. and 3:00 p.m. to 5:30 p.m. (Eastern Time). On
Thursday, the Information Line is staffed from 2:30 p.m. to 5:30 p.m. (Eastern Time).