I was reading the news and I thought, “Aaargh, guys!!!Or is it a word that means something like that?
No, I’m not talking about the presidential election.
of The Wall Street Journal There was an article published this week about an employer using artificial intelligence to determine whether executives are at risk of developing dementia. Here’s the link, but you may need a paid subscription to access it.
Indeed, in some ways this technology seems quite impressive: AI can apparently determine whether a person is at risk from the way they speak, long before a human doctor can diagnose the illness.
While I was impressed with this advancement from a technical standpoint, I was screaming inside. “What about the ADA? What about the ADA? Has anyone thought about the ADA?”
The article doesn’t mention the fact that employers may be violating the Americans with Disabilities Act by using AI in this way, but I think this is a big risk for employers. Keeping your mind sane Executive Might be Dementia develops after 6 to 7 years.
According to the article, the AI is correct in about 80% of cases. In other words, Wrong About 20 percent, or one in five cases. And of course, because the AI is predicting future dementia rather than diagnosing current dementia, employers don’t realize the AI was wrong until it’s too late.
Apparently I’m not dementia yet, because I can remember asking ChatGPT to write a blog post for me in early 2023. Groff vs. DeJoyAt the time, this was a religious accommodation case that was set to be heard by the US Supreme Court. (The case has since been heard and decided.) ChatGPT did a great job writing my post, except for one small detail… which said: Grof Was hindrance In lieu of accommodation cases under the Rehabilitation Act 1973 Religious Accommodation lawsuit under Title VII. It is also stated that there is not one plaintiff in this lawsuit but multiple plaintiffs. The following is quoted:
“The Supreme Court recently announced that it would hear Groff v. DeJoy. People with disabilities At work. This incident Group of people with disabilities People who claim the United States Postal Service (USPS) has failed to meet their demands hindrance In violation Rehabilitation Act of 1973.
(Emphasis mine.)
At least ChatGPT got the name of the case right.
Since I wrote that article, I’ve heard stories of lawyers writing briefs with the “help” of AI, and then being sanctioned by the courts because of it. fake In other words, lawyers were citing nonexistent court decisions to support their clients’ positions. As a result, many courts now have rules requiring lawyers using AI to review cases the old-fashioned way and certify to the court that they have done so before filing briefs.
And would we want to use AI to diagnose whether a person will develop a serious medical condition at some indeterminate time in the future – and then use that “information” to make hiring decisions?
Yes, that will be the case.
7 Ways This Might Violate the ADA
Here’s why using AI in this way can get employers into trouble under the ADA and many state disability protection laws.
1st place: Dementia, like many other medical conditions, is a disability.
2nd place: I am confident that the U.S. Equal Employment Opportunity Commission, which enforces the ADA’s employment provisions, would declare that a medical exam conducted by AI is a “medical examination.” Indeed, a site supervisor casually asking an employee if she is limping because of a bad hip would qualify as an ADA “medical examination.”
3rd place: The ADA prohibits employers from requiring a job applicant to undergo any type of “medical examination” before making a conditional offer of employment.
4th place: The ADA permits employers to conduct a “medical examination” after a conditional offer of employment is made, but the information obtained cannot be used to disqualify the offeree. The only exception is if the medical examination reveals that the offeree is unable to perform the essential functions of the job, with or without a reasonable accommodation. I don’t think a 4 in 5 chance of developing dementia within 6 years is enough.
5th place: Generally, it is a violation of the ADA for an employer to discriminate against an applicant, job offer, or employee based on a concern that the individual “may” develop a medical condition in the future.
6th place: Employers cannot require current employees 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, such as a performance issue or behavioral concern that can be reasonably attributed to a medical condition, to require a medical examination. Sending an executive (or other employee) for a medical examination to determine whether he or she has a medical condition is At risk They probably can’t afford to do so due to fears of developing the disease in the future.
No.7: simply ask Asking these questions without a legal basis violates the ADA, even if the employer does not actually use the information against the employee. And of course, if the information teeth Be careful when using it with employees.
Let me end on a positive note: if an employee shows signs of dementia (or any other medical condition that may be affecting their job performance or behavior), the ADA allows an employer to send the employee for a medical exam and
- Whether the employee is able to perform the essential functions of the job
- Whether reasonable accommodation is necessary or possible; and
- Recommended accommodation type.
In this context, a medical exam would likely be “job related and consistent with business necessity,” and using AI to assist with the diagnosis (or recommend a reasonable accommodation) should not raise ADA issues.
*Phew* Thanks guys, I feel better now.
