Illinois Governor JB Pritzker recently signed HB 3773 into law,
amending the Illinois Human Rights Act (the "Act") to
regulate the use of artificial intelligence (AI) in employment
practices. Amendments to the Act, which were enacted August 9,
2024, but do not take effect until January 1, 2026, prohibit the
use of AI in a manner that results in illegal discrimination in
employment decisions. Clients who use any automated tools to make
employment-related decisions in Illinois should be familiar with
this law as they formulate and implement policies regarding the use
of AI in employment decisions.
The Act defines AI broadly, covering the use of both (1)
traditional AI—"a machine-based system that, for
explicit or implicit objectives, infers, from the input it
receives, how to generate outputs such as predictions, content,
recommendations, or decisions that can influence physical or
virtual environments"—and (2) generative
AI—"an automated computing system that, when prompted
with human prompts, descriptions, or queries, can produce outputs
that simulate human-produced content." Importantly, the law
applies to the use of AI in nearly all manner of employment
decisions, including recruitment, hiring, promotion, termination,
and discipline.
The Act provides that, with respect to employment decisions, it is
a civil rights violation for an employer to (i) use AI that has the
effect of subjecting employees to discrimination on the basis of
protected classes or to use zip codes as a proxy for those
protected classes; or (ii) fail to notify an employee that the
employer is using AI to make employment decisions. An
"employer" under the statute includes any person
employing one or more employees within Illinois during 20 or more
calendar weeks preceding the alleged violation, as well as various
government entities and parties to public contracts.
Amendments to the Illinois Act follow on the heels of the 2020
Illinois AI Video Interview Act, which requires employers that use
AI to analyze video interviews to obtain informed consent from
applicants, and to gather and report, in some circumstances,
demographic data for applicants to ensure the AI analysis does not
result in bias against any protected classes. Other states and
localities have similarly enacted AI legislation calling for
protective measures. New York City, for example, requires employers
to conduct and publicize a formal bias audit of automated
employment decision tools and provide certain notices to employees
and applicants. Colorado, meanwhile, has enacted a more
comprehensive law requiring both developers and deployers of
certain AI systems to implement risk management policies and
programs, conduct impact assessments, and provide certain notices
and disclosures.
Although federal law does not currently require employers to notify
employees or job applicants that they intend to use artificial
intelligence in employment decisions, this topic has been a recent
focus and priority of the EEOC, which has issued important guidance
regarding the potential for disparate impact discrimination in the
use of AI and maintains that employers are ultimately responsible
for the effects of the AI they use.
As states increasingly enact AI legislation, clients should
consider what software and practices they have in place that use AI
that could be impacted by these statutes. In addition to monitoring
new state and local laws, clients must also consider existing laws,
and how the agencies responsible for interpreting those laws may
apply them to AI in employment. After canvassing their AI tools,
clients should consider conducting thorough impact assessments or
bias audits to ensure their AI tools do not inadvertently lead to
discrimination. Clients operating in multiple states, in
particular, should also consider engaging legal counsel to help
navigate the complexities of the patchwork of AI regulations and to
develop appropriate policies and procedures. Finally, clients
should be prepared to update their employment notices and train
their HR personnel on the evolving requirements and remain vigilant
to further developments. Staying informed and proactive in response
to these developments will be critical for clients to manage risk
and maintain compliance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.