In this series, we will explore some of the ways states vary from one another in their employment laws.
This week, California enacted new Fair Employment and Housing Act regulations regarding artificial intelligence (AI). While employers may lawfully use automated decision systems (ADS) to screen resumes, evaluate applicants' abilities, and rate interview performance, employers are prohibited from using ADS to discriminate against applicants based on any protected characteristic. All California employers will be required to retain ADS-related records for at least four years, and records must include the criteria for any ADS use and the results of any AI analysis.
California is not the only state that has enacted AI-related hiring laws. The Illinois AI Video Interview Act requires employers that record video interviews and analyze them using AI to notify each such applicant before the interview, provide each applicant with information regarding how the AI evaluation works, and obtain consent for the recording. The Colorado Artificial Intelligence Act requires employers to: (1) use reasonable care to protect applicants from known or reasonably foreseeable risks of discriminatory treatment through the use of algorithms and (2) develop a risk management policy and conduct annual impact assessments whether there are known or potential risks of discrimination. Several other states have proposed similar AI-related nondiscrimination laws, so more states will likely join California, Colorado, and Illinois soon.
While employers almost certainly are not using AI tools to discriminate against applicants intentionally, AI tools (just like humans) can have unintended biases that disproportionately impact applicants based on their disability, race, national origin, sex, or any other protected characteristic. Even if an employer's state does not have an AI bias law, employers should regularly monitor any AI tool they implement to ensure that it is unbiased.
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