ADA in Focus: Guidance and Enforcement

June 1, 2022

EEOC Warns Against Discrimination in AI Hiring & Assessment Software

While the EEOC’s latest report on the Status of Workers with Disabilities in the Federal Sector highlights how technology has been helpful in supporting disabled workers, they’ve also recently released a technical document warning employers of how technology—particularly AI used in hiring and assessment—can actually discriminate against workers with disabilities. The document, titled The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees, warns employers that without certain safeguards, AI software used in employee assessment and hiring can “disadvantage” applicants or workers with disabilities.

The EEOC recommends that employers continue to provide workers with reasonable accommodation, particularly in scenarios where “algorithmic decision-making tools” are utilized and warns that if the software requires applicants to disclose their disability status or otherwise provide information about medical conditions, they may be running afoul of the ADA’s prohibition on “disability-related inquiries.” The document urges employers to do their due diligence and make sure that hiring software they use is not perpetuating unlawful discrimination—it warns that software may unintentionally screen out disabled workers, preventing them from receiving promotions or even being hired.  Tools that may perpetuate unlawful discrimination, include resume scanners, employee monitoring software that ranks workers based on keystrokes, game-line online tests to assess job skills and video interviewing software that measures a person’s speech patterns of facial expressions.  These technologies could potentially discriminate against people with speech impediments, severe arthritis that slows typing or a range of other physical or medical impairments.

The use of AI within the hiring process is a relatively new phenomenon—meaning not all of the technology is thoroughly fleshed out yet, necessitating guidance like the recently published technical document from the EEOC. If your company is using AI software in your hiring process, it’s always good to make sure you’re not accidentally perpetuating discrimination. Clear Law Institute offers a full “interviewing and hiring lawfully” course here, to help you and your hiring managers learn best practices when it comes to equitable hiring and make sure you’re not violating the Americans with Disabilities Act.

Coffee's Shop's COVID Response Runs Afoul of ADA

A Texas-based coffee chain, 151 Coffee, has been ordered to pay $70,000 in a disability suit settlement. According to the lawsuit, the coffee shop fired employees who had asked for reasonable accommodation in the wake of the COVID-19 pandemic in 2020. The workers, two baristas, had been prevented from returning to work despite explicitly being willing to work. The baristas had disabilities that made them more vulnerable to the COVID-19 virus, but despite that were willing to continue working as long as reasonable accommodations were made. Instead the employer, 151 Coffee denied their request for reasonable accommodations and responded that the workers would not be allowed to return to work until a COVID-19 vaccine was developed. While this decision was no doubt intended to protect the employees, it unlawfully denied them reasonable accommodations that would have allowed them to continue working

On top of the monetary settlement, 151 Coffee has also been ordered to provide discrimination, ADA, and reasonable accommodation process training for its owners, HR employees, and managers.

Subway Franchise Settles in Disability Discrimination Case

The EEOC has settled another disability discrimination case, this time against a Subway franchise that was charged with failing to accommodate an Autistic worker and then firing him. The franchise was ordered to pay $30,000 as well as provide training to its employees. According to the lawsuit, in 2019 the Subway franchise hired the worker after being asked to provide him reasonable accommodation due to his Autism and ADHD. The reasonable accommodations consisted of making sure to give him specific instructions for tasks, following up to make sure he understood the instructions, and helping him with redirection when needed. Despite being explicitly told what accommodations he would need, the Subway franchise did not actually follow through on providing these accommodations. Instead, the franchise fired the worker after a mere four shifts. According to the EEOC this conduct is a violation of the Americans with Disabilities Act, which opened the franchise up to the lawsuit and settlement.

The franchise has been ordered to “amend its equal employment opportunity policy, conduct training on disability discrimination, provide reports to the EEOC, and post an anti-discrimination notice.” The EEOC views this settlement as a step towards accomplishing one of the agency’s stated goals of eradicating discrimination within the workplace, particularly discrimination against workers with intellectual disabilities.

How Clear Law Can Help

Ensuring that your equal employment opportunity policies, including harassment prevention, are current, complete, and compliant, presents a key challenge for many organizations. Clear Law’s Compliance Advisory Team has reviewed hundreds of anti-harassment and other EEO policies adopted by small, mid-size, and large employers around the country. In addition to Clear Law Institute’s Interviewing and Hiring Lawfully course which teaches equitable hiring to ensure you’re not violating the Americans with Disabilities Act, all of our online compliance training is accessible to users with disabilities as required by the Americans with Disabilities Act. Clear Law's training meets not only Section 508 requirements but also the strict requirements of the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA Success Criteria. 

Learn more about keeping your organization compliant with Clear Law Institute’s online harassment training, diversity and inclusion in the workplace training, and our free policy review and compliance services

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