As a speaker at the fall conference of the Municipal League of Maryland, I recently expressed a positive sense of the impact of technology on people with disabilities but also a clarion call that society must continue to improve its accessibility. Considering the continuous robust discussion in such fields of law and policy as administrative law and civil rights, I thought the National Disability Employment Month an opportune occasion for fostering dialogue.
I recall the audience (often composed of small-town mayors) laughing when I reminded them how Mark Twain noted how one man’s technology may be another’s magic. I would have never imagined, as a child of the 1980s, one day using a contraption called a computer and its screen-reader to pen this column. As a futurist-minded lawyer as well as past chair of the Maryland Commission on Civil Rights, I have consequently reflected upon the impact of technology on civil rights, holding hope that technology will improve all our lives.
Artificial intelligence has evolved as an integral part of the legal profession, as noted in the American Bar Association’s Model Rules of Professional Conduct. Comment No. 8 to Model Rule 1.1, indicates that, as a matter of professional competence, lawyers will affirmatively track changes in technology and incorporate technology.
As of early 2021, 38 states have incorporated this comment into their own professional conduct rules. All lawyers must grapple with emerging technologies as a matter of the profession. Civil rights leaders and policy students have learned about this simply by watching me call a Lyft driver with my iPhone, using its version of a screen-reader.
In some cases, civil rights leaders who are not disabled are not aware of technology adaptations used by the disabled. In addition, technology, including emerging technology such as AI, could, for all its potential benefits, widen inequity by people with disabilities.
People with and without disabilities now daily use remarkable technologies envisioned by science fiction movies and television programs. One example is our evolving slew of tech wearables that will only become more complex. Voice-driven interfaces now exist across devices, including in new high-end vehicles. If one believes science fiction programs, humans will do their best to ensure humanism influences innovation for the better. Regrettably, these halcyon wishes require law and policy now to ensure that humans act accordingly.
Employment is one area that could improve or hinder the disabled without proper policy safeguards. I often listen to one of the major radio stations in the Baltimore media market that broadcasts a commercial from a major artificial intelligence-based job search and recruitment firm. Artificial intelligence hiring tools include text searching technology that screens high volumes of job applications, facial analysis technology that scans facial expressions and body language of applicants during video interviews, and voice scanning technology that evaluates a job applicant’s speech, tone, and word choices.
While I am sure that emerging technologies in this element of commercial life could benefit many, with and without disabilities, I inevitably hesitate whenever the commercial suggests that every potential applicant using an artificial intelligence-based hiring program will be treated easily or even equitably.
Options in Maryland
With its access to capital, federal policy, and innovation, Maryland could undertake some policy measures. A new statutory provision could amend anti-discrimination law to require that companies selling AI prove as a matter of law that their system complies with anti-discrimination norms and requirements. Much power exits in brokering smart, compassionate leaders to advance “soft law” measures.
To ensure measurable change, the salaries as well as bonuses of executives must be based on accessibility, inclusion, and usability. As an example, Apple filed a notice with the U.S. Securities and Exchange Commission indicating that, starting in 2021, bonuses of executives will be increased or decreased by as much as 10% based on such performance metrics and outcomes as accessibility in products and services.
Such bold initiatives are needed from leaders in the field to spur a greater collective action.
In sum, the rights and equality of lawyers with disabilities could diminish or even disappear if burden- shifting occurs among developers and employers. All must take responsibility for diversity that includes the disabled. Ffeedback from any disenfranchised user group must be sought and included in the design of AI systems, including those used for hiring and for reasonable accommodations processes.
Moreover, our leaders and those who seek high office in Maryland should commit to hiring substantial numbers of lawyers with disabilities. If so, the gains for society could be profound.
Gary C. Norman, Esq. LL.M. is the past chair of the Maryland Commission on Civil Rights. He can be reached at (410) 241-6745.