Increasingly common methods that employers are using to select new hires, judge performance and determine pay or promotions may discriminate against people with disabilities, federal officials say.

The U.S. Department of Justice and the Equal Employment Opportunity Commission say artificial intelligence and other software tools used by companies can result in employers violating the rights of people with disabilities under the Americans with Disabilities Act. Businesses frequently use computer-based tests or resume-scoring software to screen job applicants as well as other technology to assess the performance of current and prospective workers.

In guidance issued late last week, the agencies point out that without safeguards, software tools can screen out capable people with disabilities. For example, a wheelchair user interviewing for a cashier position may be turned away by a chatbot if they say they cannot stand for hours even though they could do the job while seated, the EEOC notes.

The guidance stops short of telling employers that they cannot use artificial intelligence and other software tools, instead detailing what steps should be taken to ensure ADA compliance.

When utilizing technological tools, employers should consider the impact on people with various disabilities and have a process for providing reasonable accommodations when appropriate, the guidance indicates. Employers should also remember that if software tools make people disclose information about their disabilities or medical conditions, that could lead to inquiries or medical exams that are not permitted.

“Algorithmic tools should not stand as a barrier for people with disabilities seeking access to jobs,” said Kristen Clarke, assistant attorney general for civil rights at the Justice Department. “This guidance will help the public understand how an employer’s use of such tools may violate the Americans with Disabilities Act, so that people with disabilities know their rights and employers can take action to avoid discrimination.”

Beyond guidance for employers, the EEOC is also offering tips for people with disabilities who believe they have been discriminated against.

“New technologies should not become new ways to discriminate,” said EEOC Chair Charlotte A. Burrows. “If employers are aware of the ways AI and other technologies can discriminate against persons with disabilities, they can take steps to prevent it.”

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