Reckless Indifference to Job Applicants with Disabilities
Many employers use automated hiring systems to screen millions of job applicants each year. If in the process of selecting and implementing those systems, employers are found to have engaged in discriminatory practices with reckless indifference to the federally protected rights of job applicants with disabilities, they may be liable for claims of punitive damages and pain and suffering. Punitive damages are intended to punish egregious employer misconduct and damages for pain and suffering include compensation for the negative emotions suffered as a result of discrimination.
Egregious employer misconduct includes the willful failure to comply with the statutory provisions of the Americans with Disabilities Act (ADA). Congress enacted the ADA to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Congress recognized that “the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.” 42 U.S.C. § 12101(a)(8).
And yet, thirty years after the enactment of the ADA, only 19% of people with disabilities were employed, as compared to an employment rate of 66% among people without disabilities, and nearly a third of the 19% had only part-time employment.
It’s not that persons with disabilities do not want to work. They do. The shamefully low employment and shamefully high underemployment rates are due in part to employers’ use of automated hiring systems that, according to the Department of Justice Civil Rights Division, are “essentially turbocharging the way in which employers can discriminate against people who may otherwise be fully qualified for the positions that they’re seeking.”
The Shabby Illusion of Legal Compliance
Notwithstanding the ADA’s specific prohibitions on hiring practices that screen out persons with disabilities and pre-employment medical examinations, employers and third-party providers of automated hiring systems act as if the ADA does not apply to them.
For example, HireVue, Inc., a provider of automated hiring systems to many employers, states:
When HireVue creates an assessment model or algorithm, a primary focus of the development and testing process is finding and removing factors that may cause bias (or “adverse impact”) against protected classes. The HireVue team carefully tests for bias related to age, gender, ethnicity, and any other demographic data we have, throughout the process — before, during, and after development of the assessment model. Thorough testing is done before candidates take interviews and continues as long as the model is being used to assess candidates and prevent bias.
At HireVue, our goal is not just to use our technology to minimize bias in employment decisions, but to actively promote diversity, and work toward a common goal of equal opportunity for everyone — regardless of gender, ethnicity, age, or disability status.
Conspicuously absent from HireVue’s listing of protected classes that HireVue “carefully tests for bias” are persons with disabilities. This belies the company’s statement that its goal is “to actively promote diversity, and work toward a common goal of equal opportunity for everyone — regardless of gender, ethnicity, age, or disability status.” More importantly to employers using HireVue automated hiring systems, HireVue’s failure to test for bias related to disability status puts those employers at risk for punitive damages.
The reason HireVue does not list disability status among the elements it tests for bias (adverse impact), is that adverse impact is specifically not the standard used for determining employment discrimination under the ADA. The ADA standard is whether the system screens out or tends to screen out an individual with a disability or a class of individuals with disabilities. Using adverse impact to determine disability discrimination under the ADA is the equivalent of using an oil pressure gauge to measure a car’s speed, and demonstrates reckless indifference by HireVue and its employer clients to federally protected rights of job applicants with disabilities.
Punitive Damages
As previously noted, if a job applicant can demonstrate that an employer engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the applicant’s federally protected rights, that applicant may claim punitive damages, as well as pain and suffering.
The Supreme Court held in 1999 that the terms “malice” and “reckless indifference” pertain not to the employer’s awareness that it is engaging in discrimination, but to its knowledge that it may be acting in violation of federal law. The court held that a claim for punitive damages does not require a showing of egregious or outrageous discrimination independent of the employer’s state of mind.
Damage awards under the ADA for pain and suffering and punitive damages are capped at between $50,000 and $300,000 per job applicant based on the number of employees of the employer. The $300,000 cap is applicable to employers with more than 500 employees.
Job applicants may seek awards for pain and suffering and punitive damages under the ADA on many bases, including the failure by employers to (1) provide reasonable accommodations to job applicants, (2) utilize the statutory “screen out” standard for determining compliance by their systems with the ADA, and (3) select and administer automated hiring systems to ensure the systems do not reflect applicants’ impairments.
Failure to Provide Reasonable Accommodations
The statutory language of the ADA requires employers to provide a “reasonable accommodation” when it is necessary for a job applicant with a disability to be rated fairly and accurately by an automated hiring system. A reasonable accommodation is a change in the way things are done that helps a job applicant with a disability apply for a job.
Reasonable accommodations may be required when
a job applicant who has 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, trackpad, or other manual input device. Especially if the responses are timed, this kind of test will not accurately measure this particular applicant’s knowledge. In this situation, 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. If it is not possible to make the test accessible, the ADA requires the employer to consider providing an alternative test of the applicant’s knowledge as a reasonable accommodation, barring undue hardship.
The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees, EEOC (May 12, 2022)
Imagine Professor Stephen Hawking being subjected to an automated hiring system process that measured facial movements and oral communications, including tone and speed, without reasonable accommodation.
Professor Hawking was diagnosed with a rare form of motor neurone disease when he was 22. The nerves that controlled his muscles were failing and he became trapped in his body, but his mind was still free. He reached the height of his field — theoretical physics — while being a wheelchair user and communicating through a synthetic voice.
Reckless Indifference to Statutory Standard
Ever since the ADA was enacted more than 30 years ago, the statutory standard for determining whether a hiring tool, like an automated hiring system, complies with the statute is whether the system screens out or tends to screen out an individual with a disability or a class of individuals with disabilities.
The EEOC writes that when employers (or entities acting on their behalf such as software vendors) say that they have designed an algorithmic decision-making tool to be “bias-free,” it typically means that they have taken steps to prevent a type of discrimination known as “adverse impact” or “disparate impact” discrimination. This type of discrimination involves an employment policy or practice that has a disproportionately negative effect on a group of individuals who share one of these characteristics, like a particular race or sex. Adverse impact is the standard used for determining employment discrimination under Title VII of the Civil Rights Act.
Unlike factors like race, gender, and age, each disability is unique. An individual may fare poorly on an assessment because of a disability, and be screened out as a result, regardless of how well other individuals with disabilities fare on the assessment. Therefore, to avoid screen out, employers need to take different steps than those taken to address other forms of discrimination.
For example, persons diagnosed with autism, depression, and schizophrenia, and persons with traumatic brain injury may have a flat affect. Persons who have a flat affect do not show the usual signs of emotion like smiling, frowning, or raising their voices and, consequently, they will be screened out by automated hiring systems that use facial and spoken word analyses.
Failure to Independently Investigate
The ADA requires employers to select and administer automated hiring systems in the most effective manner to ensure that the system accurately reflects the skills, aptitude, or whatever other factor that the assessment purports to measure, rather than reflecting an applicant’s impairment.
Employers should examine hiring technologies before use, and regularly when in use, to assess whether they screen out individuals with disabilities who can perform the essential functions of the job with or without required reasonable accommodations.
“Algorithms, Artificial Intelligence, and Disability Discrimination in Hiring,” U.S. Department of Justice (May 12, 2022)
If an automated hiring system eliminates job applicants with disabilities, and those applicants can perform the essential functions of the job, the employer must use a system that measures the applicants’ job skills, not their disabilities.
Employers are required to independently verify that the automated hiring systems they use are compliant with the law, including the ADA. Many employers do not meet that requirement. Instead, they recklessly rely on the statements made by the vendors of the systems they use. That reliance is misplaced because it is the employers who will face claims for punitive damages and pain and suffering under the ADA from job applicants.
