Have you ever read something in the news that makes you think: “My goodness, people!!!” Or words to that effect?
And no, I’m not talking about the presidential election.
The Wall Street Journal There was an article this week about employers using artificial intelligence to determine if their executives are at risk of dementia. Here is a link, but you may need a paid subscription to access it.
I admit that the technology sounds pretty cool in some ways. The AI can apparently tell from people’s speech patterns if they are at risk… long before a qualified human doctor could diagnose the disease.
Although I was impressed by this technological development, I was screaming in my head: “What about the ADA? What about the ADA? Has anyone thought about the ADA?”
The article did not address the fact that an employer using AI in this way may be violating the Americans with Disabilities Act. But I think it is a big risk for employers. Worse than the risk that a perfectly sane executive could develop dementia later than six or seven years.
The article states that the AI is correct in about 80 percent of cases. In other words: The AI is incorrect in about 20 percent or a fifth of cases. And of course, the employer will not realize that the AI was wrong until it is too late, because the AI predicts future dementia and does not diagnose current dementia.
I don’t think I have dementia (yet), because I remember asking ChatGPT to write a blog post for me in early 2023 about Groff vs. DeJoya religious subordination case that was to be heard before the US Supreme Court at the time. (This case has since been heard and decided.) ChatGPT wrote my post well, except for one small detail… it said that Groff was a disability Placement under the Rehabilitation Act of 1973 instead of a religious Title VII detention case. It also said that the case had multiple plaintiffs instead of just one. Here is the quote I got:
“The Supreme Court recently announced that it will review Groff v. DeJoy, a case that has the potential to change the rights of People with disabilities at work. This case was brought by a group of people with disabilities who argue that the United States Postal Service (USPS) failed to protect their Disabilities in violation of the Rehabilitation Act of 1973.
(Emphasis added.)
At least ChatGPT got the name of the case right.
Since I wrote this post, we have heard of lawyers writing briefs with the “help” of AI. Then they end up being sanctioned by the courts because the AI invented case law, meaning the lawyers were citing nonexistent court decisions to support their clients’ positions. As a result, many courts now have rules requiring AI lawyers to review their cases the old-fashioned way before filing their briefs and certify to the courts that they have done so.
And we want to use AI to diagnose whether a person will suffer from a devastating disease at some unspecified time in the future? And we want to use this “information” in hiring decisions?
Um, yes, it will.
Seven reasons why this probably violates the ADA
Using AI in this way will cause problems for employers under the ADA and also under many state disability laws for the following reasons:
No. 1: Dementia, like many other diseases, is a disability.
No. 2: I’m sure the U.S. Equal Employment Opportunity Commission, which enforces the employment provisions of the ADA, will say that a medical evaluation performed by AI is a “medical examination.” Heck, it’s a “medical examination” under the ADA if a supervisor casually asks an employee if she’s limping because she has a bad hip.
No. 3: The ADA prohibits employers from requiring applicants to undergo any type of “medical examination” before making them a conditional offer of employment.
No. 4: The ADA allows employers to conduct “medical examinations” after a conditional job offer is made, but the information obtained cannot be used to disqualify the applicant. The only exception is if the medical examination shows that the applicant cannot perform the essential functions of the job, with or without a reasonable accommodation. I don’t think a four in five chance of developing dementia in six years is enough.
No. 5: In general, it is a violation of the ADA for an employer to discriminate against an applicant, job recipient, or employee because of a fear that the individual “may” develop a disease in the future.
No. 6: An employer may not require a current employee to undergo a “medical examination” unless the examination is “job-related and consistent with business necessity.” In other words, there must be a job-related reason for requiring the medical examination, such as a performance problem or a behavioral problem that could reasonably be attributed to a medical condition. Sending a manager (or other employee) for a medical examination to determine whether the individual endangered for the development of a future disease will not be sufficient.
No. 7: Only questions Asking these questions without legal justification is a violation of the ADA. Even if the employer never actually uses the information against the employee. And of course, if the information Is be used against the employee – be careful!
I would like to end on a positive note. If an employee shows objective signs of dementia (or any other condition that appears to affect his or her job performance or behavior), the ADA would allow the employer to send the employee for a medical examination to determine
- whether the employee can perform the essential tasks of the position,
- whether reasonable accommodation is necessary or possible and
- the types of accommodation that might be advisable.
In this context, the medical examination is likely to be “job-related and consistent with business necessity.” And the use of AI to assist with diagnosis (or appropriate adjustment recommendations) should not pose an ADA problem.
*phew* Thanks guys. I feel better now.
