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By not providing a “reasonable accommodation” that is necessary for a job applicant or employee to be rated fairly and accurately by the AI or algorithmic decision-making tool. 

Relying on an algorithmic decision-making tool that intentionally or unintentionally “screens out” an individual with a disability, without regard to a reasonable accommodation.  

By implementing AI in a manner that violates the ADA’s restrictions on disability-related inquiries and medical examinations. 

If an applicant or employee tells the employer that a medical condition may make it difficult to take a test/assessment or pass a test/assessment, the employer should recognize that the applicant or employee has requested a reasonable accommodation and should engage in the interactive process. 

Employers must try to prevent using an algorithmic decision-making tool that screens out a job applicant or employee with a disability without providing reasonable accommodation. If a test or technology eliminates someone because of their 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 or employment evaluation process so that a qualified person is not eliminated because of their disability.  

Employers must ensure that the AI and algorithmic tools they use in hiring and employment do not unlawfully seek medical or disability-related information or conduct medical exams through their use of AI and algorithms. An employer might violate the ADA if it uses an algorithmic decision-making tool that poses “disability-related inquiries” or seeks information that qualifies as a “medical examination” before giving the candidate a conditional offer of employment. This type of violation may occur even if the individual does not have a disability. 

Train staff to recognize and process requests for reasonable accommodations, including requests to retake a screening test in an alternative format, or to be assessed in an alternative way. 

Develop alternative means of rating job applicants and employees when it becomes apparent that current testing unfairly disadvantages an applicant who has requested a disability-related accommodation. 

Use algorithmic decision-making tools designed to be as accessible to all applicants as possible, thereby minimizing the occurrence of applicants with disabilities being unfairly disadvantaged in assessments. Employers beware: Using software that allegedly eliminates disability discrimination does not absolve the employer from liability should it discriminate through its use. 

Inform job applicants and employees who are being rated that reasonable accommodations are available for individuals with disabilities and how to request them. 

Before purchasing an algorithmic decision-making tool, an employer should ask the vendor to confirm that the tool does not ask job applicants or employees questions that are likely to elicit information about a disability or seek information about an individual’s physical or mental impairments or health, unless such inquiries are related to a request for reasonable accommodation.