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Yes. AI hiring tools can disadvantage qualified applicants through the way they score people, the criteria they use, or an inaccessible assessment. In the United States, employers remain responsible for complying with employment discrimination laws when they use software. New York City also has additional notice and audit rules for certain automated employment decision tools; those local requirements do not apply nationwide.
How can an AI hiring tool disadvantage an applicant?
A hiring tool may rank, score, classify or screen applicants using information gathered from applications, tests, interviews or other sources. Discrimination can arise when its criteria or effects disadvantage people protected by law, or when an applicant cannot access the assessment in the first place.
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- Scoring or classification: A tool may screen out qualified applicants based on patterns or criteria that disadvantage a protected group.
- Disability-related proxies: Facial or voice analysis could screen out qualified people with autism or speech impairments, according to the U.S. Department of Justice. This is an example of a risk, not evidence that every tool using such analysis has that effect. DOJ guidance on algorithms, AI and disability discrimination in hiring.
- Inaccessible assessments: DOJ describes an online interview platform that a blind applicant cannot use with a screen reader. A process can pose a barrier even if its scoring criteria are otherwise job-related. DOJ guidance.
The U.S. Equal Employment Opportunity Commission (EEOC) warns that algorithmic or AI decision-making may screen out people with disabilities who can perform a job with or without reasonable accommodation. A potential disparity or barrier is a reason to ask questions, but it does not by itself establish that a particular employer violated the law.
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What laws apply to AI-assisted hiring?
Federal protections apply when employers use software
Using an algorithm does not remove an employer’s responsibility under federal employment protections. For practices based on applicant background information, the EEOC explains that a practice with a significant adverse effect on a protected group may be unlawful if it is not job-related and consistent with business necessity. Disability protections also require reasonable accommodation during the application process for a qualified applicant, unless doing so would cause undue hardship. Other state and local protections may also apply.
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These are general principles, not a decision about any individual case. The applicable law and available process can depend on the employer, location and facts. Read the EEOC guidance on employment tests and selection procedures and its guidance on visual disabilities in the workplace and the ADA.
New York City has an additional rule for covered tools
New York City Local Law 144 applies to covered automated employment decision tools used to screen candidates or employees for employment decisions in the city. Among other things, it requires a bias audit conducted no more than one year before use, public posting of the most recent audit summary and tool distribution date before use, and specified candidate notices. It is a local rule, not a nationwide requirement. See the New York City Administrative Code, Subchapter 25.
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What should I do if an AI assessment is inaccessible or seems unrelated to the job?
Contact the employer or hiring representative promptly and ask for a reasonable accommodation or an effective alternative assessment. Describe the barrier and what change would let you participate or demonstrate the relevant ability. Depending on the assessment, that might mean an accessible format or a different way to complete it. An accommodation request does not guarantee selection or a job offer; it is a request to make the hiring process accessible, subject to the applicable legal standard.
The EEOC discusses situations where AI tools inaccurately assess an applicant with a visual disability, while DOJ explains that employers must ensure their hiring technology does not cause unlawful disability discrimination. See the EEOC visual-disability guidance and DOJ hiring-technology guidance.
Can I ask for an alternative way to apply?
Yes. You can ask the hiring contact for an accommodation or alternative selection process if a tool creates a disability-related barrier or prevents you from showing the relevant qualification. In New York City, a notice for a covered automated employment decision tool must give candidates a way to request an alternative selection process or accommodation. Outside that specific rule, federal accommodation protections may still apply, but the NYC notice requirement should not be assumed to apply.
What notice should a New York City applicant receive?
For covered tool use, an employer or employment agency must notify a candidate who resides in New York City at least ten business days before use. The notice must say that an automated employment decision tool will be used and identify the qualifications and characteristics it will assess. It must also explain how to request an alternative selection process or accommodation. If certain information is not on the employer’s website, the candidate may request in writing information about the data collected, its source and the tool’s data-retention policy. Check the NYC Department of Consumer and Worker Protection’s AEDT information and the law’s text for current details.
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What does an AI hiring audit establish—and what does it not?
A Local Law 144 bias audit examines specified selection outcomes, including sex, race or ethnicity, and intersectional categories. The law requires publication of the most recent audit summary, but the audit is not a certification that a tool is fair in every respect. Nor does the law itself require an employer to take a particular action when an audit finds biased outcomes. Other federal, state and local discrimination laws continue to apply independently. See the New York State Comptroller’s review of Local Law 144 enforcement.
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Where can I report a concern?
- Covered New York City AEDT requirements: NYC DCWP accepts complaints about covered tool use without a required bias audit, public audit summary or notice. See its AEDT page for current information.
- Suspected disability discrimination: DOJ directs applicants to the EEOC charge process. A complaint to DOJ may also be available when a state or local government employer is involved. Start with the DOJ guidance and the relevant agency’s current filing instructions.
Deadlines and filing routes depend on the claim and location, so contact the relevant agency promptly. Reporting a concern does not itself determine whether discrimination occurred.
Questions to consider when comparing assessment routes
If an employer offers more than one assessment or application route, these questions can help you understand whether the process gives you a meaningful way to demonstrate your qualifications. They are practical questions, not a legal certification checklist.
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- Does the assessment measure qualifications tied to the job, rather than proxies such as speech or visual presentation?
- Can you use it with your assistive technology?
- Can you request a reasonable accommodation or an equivalent alternative route?
- Has the employer explained what the tool evaluates?
- If the job is in New York City and the tool is covered, has the employer provided the required notice and made the audit summary available?
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