applicants/employees with mental disorders (the test was designed to reveal mental illnesses), and therefore amounted to an impermissible medical examination under the ADA and could not be used in the pre-offer stage of the hiring process. The court also found that the employer’s practice of requiring employees seeking management positions to take the test violated the ADA because the test was designed, at least in part, to reveal mental disorders since elevated scores could be used in diagnoses of certain mental disorders. The court distinguished between tests that are designed to identify a mental disorder or impairment (medical exam) and tests that measure personality traits such as honesty, preferences and habits (not medical exams). Employers using AI and algorithmic decision-making tools must remember that they have an ongoing obligation to ensure that their processes, whether human or computerized, do not intentionally or unintentionally discriminate against applicants or employees on the basis of any protected characteristic. Outsourcing the processes to a software vendor is not a defense to a claim of discrimination. Therefore, it is important to properly vet vendors and understand what steps the vendors have taken to assess or validate whether their software/tools have a disparate impact on protected groups. Employers should understand the technology they are using and why they are using the technology. If it is being used to screen applicants for certain qualities or criteria, the employer should be prepared to identify and support the qualities they are requiring for a position (e.g., drive to succeed, dependability, team player, attention to detail, people-focused, etc.), and how the technology serves the employer’s legitimate business needs. Employers should also actively monitor or self-analyze the technology they are using for potential disparate impacts (e.g., whether an employee is disadvantaged if they have a disability). Employers must also remember that the anti-discrimination laws, including an employer’s obligation to provide reasonable accommodations for disabilities, apply equally to applicants and employees. Applicants with disabilities have the right to reasonable accommodations in the hiring process. Employers using AI or other technology (e.g., chatbots, video interviewing) may have an obligation to make reasonable accommodations for applicants and employees with visual or hearing impairments. The information in this article is provided for general information purposes only and does not constitute legal advice or an opinion of any kind. You should consult with legal counsel for advice on your institution’s specific legal issues. Woman on the Rise Award Sponsored by Celebrating a woman age 40 or younger who is making a significant impact in her industry and community, making her “one to watch.” Candidates are interwoven and involved in their communities and should achieve success independently, but thrive on sharing their vision with others and contributing to team success. This young professional welcomes change and opportunities to tackle new projects. Nominations are now open! Debra A. Mastrian Partner Amundsen Davis LLC DMastrian@AmundsenDavisLaw.com Debbie grew up watching her father practice law and seeing him help people resolve their problems inspired her to become a lawyer. With a focus on employment litigation and counseling, Debbie’s practice includes defending employers against discrimination claims, wage and hour violations, retaliation claims, unfair competition and FLSA collective actions. She also handles a wide range of business litigation matters. Amundsen Davis LLC is a Diamond Associate Member of the Indiana Bankers Association. HUMAN RESOURCES CONT. 60 HOOSIERBANKER
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