44 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP jury must decide this question by balancing it against other evidence, such as the ‘fact’ that there no women were employed in a warehouse role during the period contemporaneous with the statements evidencing discrimination and that Defendant failed to hire any of the eleven women who applied for the Warehouse Coordinator Position.” 132 Another recent case demonstrates the unique problems that the EEOC can encounter when it brings lawsuits that allege discriminatory hiring practices. In EEOC v. USF Holland, LLC, 133the EEOC alleged that the employer had discriminated against female applicants for truck driving positions. The charging party was allegedly denied a position due to discrimination in May 2015, but did not file a charge of discrimination until October 8, 2015. The court held that “Section 706 authorizes the EEOC to sue on behalf of one or more ‘persons aggrieved’ by an unlawful employment practice,” and “when a plaintiff brings a class action on behalf of aggrieved applicants, the plaintiff may allow applicants who did not file a charge to ‘piggyback’ onto a timely charge filed by another applicant.” 134 However, The “piggyback” (or “single-filing”) rule, only allows such aggrieved applicants to do so “if the discrimination they allege occurred during the relevant limitations period, as determined by the charge underlying the federal court action.” 135 The relevant timeline in that case was 180 days. Accordingly, the court held that any claim predating April 11, 2015 (180 days prior to the date of the charging party’s charge) was time-barred.136 2 Preventing Disability Discrimination In Recruitment And Hiring a. E EOC’s Guidance On Preventing AI- And Technology-Related Disability Discrimination Disability discrimination claims continue to make up a large part of the EEOC’s docket in terms of its attempts to eliminate barriers in recruitment and hiring. From FY 2020 to FY 2021, ADA cases increased fairly significantly, and they now represent 29% of all charges filed with the EEOC. As these types of claims continue to rise, employers should be aware of the specific ways in which technological advancements like AI tools can lead to disability discrimination charges and lawsuits. This is especially important for businesses that continue to grow—thereby requiring increased efficiency in the hiring process—in the midst of a global pandemic where remote work (and use of digital platforms) have become the norm. Consistent with this new reality, on May 12, 2022, the EEOC issued important guidance on how AI and technology-related disability discrimination can arise, particularly when such technology is used in the pre‑employment screening process. That guidance followed notice from the EEOC in October 2021 of an initiative to ensure that AI and other technology used in hiring and employment decisions comply with federal anti-discrimination laws. Entitled the “Americans With Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees,” the EEOC’s guidance discusses how existing ADA requirements may apply to the use of AI, software applications, and algorithms in employment-related decision-making processes and practices. The guidance also offers useful information and tips to employers in an effort to assist them with ADA compliance when using such tools. Specifically, the EEOC explains how an employer’s use of AI and other technological tools can discriminate against disabled individuals within the meaning of the ADA, group the potential types of discrimination into three broad categories: (1) failing to reasonably accommodate an employee’s disability; (2) screening out qualified individuals with disabilities; or (3) posing “disability-related inquiries” or seeking information 132 Id. at *10 (emphasis in original). 133 EEOC v. USF Holland, LLC, No. 3:20-CV-270, 2021 WL 4497490 (N.D. Miss. Sept. 30, 3021). 134 Id. 135 Id. 136 Id. Moreover, the court held that the EEOC could not resort to the “continuing violation doctrine” because that doctrine does not apply to a failureto-hire claim, even in the case of an alleged systemic policy or pattern and practice. Id. at *2. This is because “[f]ailure to hire is a “discrete act” which is easy to identify and distinguished from hostile work environment claims, which the Supreme Court has found amenable to the continuing violation doctrine.” Id.