EEOC Issues Guidance on Disability Discrimination

The Equal Employment Opportunity Commission (EEOC) is providing technical assistance concerning the possible disability discrimination in violation of the Americans with Disabilities Act (ADA) due to employers’ using artificial intelligence tools. The Department of Labor is conducting regional listening sessions as it considers whether to modify the regulations concerning the Fair Labor Standards Act’s (FLSA) overtime exemptions for executive, administrative and professional employees. For those employers who did not file their EEO-1 reports by the May 17^th deadline, the EEOC has advised that they have until June 21^st to file their reports.

EEOC Issues Document on AI Disability Discrimination – The Equal Employment Opportunity Commission (EEOC) has issued a technical assistance document about the possibility of disability discrimination resulting from employer use of artificial intelligence (AI) and other software tools when making employment decisions.

The EEOC technical assistance document titled “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees” outlines factors that employers should consider to ensure that the use of software tools in employment does not result in disadvantaging applicants or workers with disabilities in violation of the ADA. EEOC Chair Charlotte A. Burrows stated that “New technologies should not become new ways to discriminate. If employers are aware of the ways AI and other technologies can discriminate against persons with disabilities, they can take steps to prevent it.”

According to the EEOC, its technical assistance document focuses on three primary ADA concerns:

• Employers should have a process to provide reasonable accommodations when using algorithmic decision-making tools. The EEOC includes as an example job applicant with limited manual dexterity because of a disability may report that they would have difficulty taking a knowledge test that requires the use of a keyboard or other manual input device. If the responses are timed, this kind of test will not accurately measure knowledge of the applicants. The employer would need to provide an accessible version of the test (for example, one in which the applicant is able to provide responses orally, rather than manually) as a reasonable accommodation, unless doing so would cause undue hardship. Other examples of reasonable accommodations that may be effective for some individuals with disabilities include extended time or an alternative version of the test, including one that is compatible with accessible technology such as a screen-reader.

• Without proper safeguards, workers with disabilities may be screened out from consideration in a job or promotion even if they can do the job with or without a reasonable accommodation. As an example, the EEOC advised that video interviewing software that analyzes applicants’ speech patterns to reach conclusions about their ability to solve problems is not likely to score applicants fairly if they have a speech impediment that causes significant differences in speech patterns. If applicants are rejected because their speech impediment resulted in low or unacceptable ratings, the applicants may effectively have been screened out because of their speech impediments.
• If the use of AI or algorithms results in applicants or employees having to disclose information about disabilities or medical conditions, it may result in prohibited disability related inquiries or medical exams.

The EEOC included some promising practices that may help employers to meet the reasonable accommodation requirement such as: training staff to process reasonable accommodation requests as quickly as possible, training staff to obtain alternative means of rating job applicants and employees when an evaluation process unfairly disadvantages someone who has requested a reasonable accommodation, asking a testing company administering an assessment to forward all accommodation requests to the employer for consideration, using algorithmic decision-making tools that have been designed to be accessible by individuals with different kinds of disabilities, informing those being rated that reasonable accommodations are available for individuals with disabilities, providing instructions as to how to request accommodations, and ensuring that the algorithmic decision-making tools only measure job related abilities or qualifications.

DOL Overtime Exemption Listening Sessions - The U.S. Department of Labor will hold a series of regional online listening sessions on possible revisions to the regulations concerning the Fair Labor Standards Act’s (FLSA) overtime exemptions for executive, administrative and professional employees. To date, three listening sessions have been held for Southeast, Southwest, and Midwest employers, employer representatives, and employer associations, with additional ones to be scheduled. The FLSA provides exemptions from overtime for executive, administrative, and professional employees who are paid on a salary basis at not less than $684/week and meet specific tests concerning their job duties. The Labor Department has indicated that it is considering whether to propose regulations increasing the salary basis amount to be considered exempt from the FLSA. Jessica Looman, Acting Wage and Hour Division Administrator indicated that “Industry demands, and the challenges employers face are an important part of any discussion on regulatory change. We want to hear from industry leaders and employers.”

Issues on which the Labor Department is seeking input include:

• The salary level above which the exemptions should apply,
• The costs and benefits to employers and employees of increasing the salary level,
• The best methodology for updating the salary level and the appropriate frequency of updates, and
• Whether other changes to the overtime regulations are needed.

EEO-1 Filing Deadline – May 17^th was the deadline for the filing of the mandatory EEO-1 report. The Equal Employment Opportunity Commission (EEOC) advised that those who did not submit their reports by the May 17^th deadline would receive a notice of failure to file instructing them to submit their data no later than June 21^st. After the June 21^st deadline, no additional reports will be accepted, and the filers will be out of compliance with their mandatory 2021 EEO-1 filing obligation. The EEO-1 is a mandatory report required by Title VII of the Civil Rights Act of 1964 to be filed annually by all private sector employees with at least 100 employees and federal contractors with at least 50 employees. The report includes demographic workforce data by race/ethnicity, sex, and job categories.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.