My son has been applying for hourly, entry-level summer jobs. Through his process, I am seeing first-hand, from the applicant’s perspective, the varying ways in which software, algorithms and artificial intelligence now predominate the job application process at this level.  When I was his age, I walked into different establishments, asked to speak with a manager, completed a paper application and then moved on, hoping to be called for a phone or in-person interview.  Now, from his experience:

• Walk-in applicants are directed to a website, either that of the business itself or of a third-party vendor, to find postings for open positions;
• All applications are submitted electronically, through on-line portals;
• Initial screenings may be conducted by a series of questions texted to the applicant, and a wrong answer can shut the process down with a polite but firm response that the organization will not be proceeding further with the application at this time;
• A next-level screening may be a video “interview,” which comprises the applicant self-recording, on the applicant’s phone with video enabled, responses to scripted questions posed by the organization and then submitting the video through a portal for review – perhaps by a human, but more likely first run through software that screens for certain substantive responses and stylistic behaviors; and
• Scheduling of actual, in-person interviews may proceed through text or email, and the delayed responder may lose the interview opportunity, but the quick responder may, eventually, meet with an actual human being, in-person or via videoconference.

My son is very tech-savvy and was non-plussed by the AI aspects of his experience.  I, on the other hand, thought of the challenges my friends and I all have had, to varying degrees, trying to assist older family members use some of the same technologies deployed in my son’s job application process.  And I wondered, how would any of them be able to apply for an entry-level job under the current processes?  So too, the EEOC says, with regard to individuals with disabilities. 

In recently-issued Guidance, the EEOC considers these myriad ways in which automated processes and artificial intelligence can reject individuals with disabilities who would be qualified to do the job if provided a reasonable accommodation.  The EEOC recommends that employers account for this in various ways.  They include:

• Notice – provide clear notice and instructions for applicants to request a reasonable accommodation in the context of the application process;
• Relevance – assess algorithmic decision-making tools to confirm they measure only necessary skills and do not screen out individuals with certain disabilities; and
• Disclosure of Process – disclose in advance information about which traits are being measured by an algorithmic tool, how they are being measured, and which disabilities might potentially score less favorably.

Artificial intelligence, we need to remember, is only as good as the information that was first used to program it.  The biases of the program designers and developers can influence the types of questions posed, or the way information is presented or analyzed, and thereby result in outcomes that disproportionately impact individuals possessing certain protected characteristics.  While some software vendors test for these disparate impact outcomes and will certify their products as having been tested to be “bias-free,” the EEOC cautions that those “bias-free” certifications pertain to Title VII-protected characteristics: race, sex, national origin, religion, and color.  Disabilities are unique to each individual, as is the requirement to provide reasonable accommodations for individuals with disabilities who are otherwise able to perform the essential functions of a job, and automated tools may thereby impact differently-abled individuals, even if they have the same diagnosed condition.

The EEOC encourages employers to develop and select tools that only measure abilities or qualifications that are truly necessary for the job.  While particularly resonant in the context of accommodating individuals with disabilities, the EEOC’s recommended approach will equally help employers to avoid inadvertently screening out individuals based on other protected characteristics.

Central to the EEOC’s guidance is encouraging employers to equip individuals with disabilities with sufficient information about the employer’s job application process so they know when they may need a reasonable accommodation to succeed in that process.  Particularly in the currently tight labor market, where employers are casting ever-wider nets to attract job applicants, a reassessment of screening tools can help to ensure that readily-available candidates are not rejected prematurely for reasons unrelated to their actual ability to perform the job.

By Tracey I. Levy