The advancement of artificial intelligence (AI) has prompted state and federal agencies – at all levels – to initiate regulatory efforts and guidelines aimed at balancing innovation with workplace safeguards. A major concern across all regulatory agencies is the potential for inadvertent discriminatory practices.  

Automated decision-making systems — which may rely on algorithms or AI — are increasingly used in employment settings to facilitate a wide range of decisions related to job applicants or employees, including recruitment, hiring, and promotion. While such tools provide myriad benefits, they can also exacerbate existing biases and contribute to discriminatory outcomes (e.g., AI tool that rejects women applicants by mimicking the existing features of a company’s male-dominated workforce or a job advertisement delivery system that reinforces gender and racial stereotypes by directing certain jobs to women or workers of color). 

Over the next few weeks, we’ll be highlighting a few of the key regulatory schemes and guidelines impacting an employer’s use of AI and other automated decision-making technologies when making employment-related decisions.  

California 

The California Civil Rights Council (CRC)i has released proposed regulations to protect against discrimination in employment resulting from the use of artificial intelligence, algorithms, and other automated decision-making systems.  

Known as the Proposed Regulations Protecting Against Employment Discrimination in Automated Decision-making Systems, the CRC’s proposed regulations seek to: 

• Clarify that it is a violation of California law to use an automated decision-making system if it harms applicants or employees based on protected characteristics. 

• Ensure employers and covered entities maintain employment records, including automated decision-making data, for a minimum of four years. 

• Affirm that the use of an automated decision-making system alone does not replace the requirement for an individualized assessment when considering an applicant’s criminal history. 

• Add definitions for key terms used in the proposed regulations, such as “automated-decision system,” “adverse impact,” and “proxy.” 

A public comment period is currently open for the proposed regulations. Interested parties are encouraged to submit public comments by July 18, 2024. Written comments must be submitted by 5:00 PM PT on July 18, 2024. Comments may be submitted by email at [email protected]. A public hearing on the proposed regulations will be held at 10:00 AM PT on July 18, 2024.  

Additional information on how to submit public comment and participate in the hearing is available here. The notice of proposed rulemaking, initial statement of reasons for the proposed regulations, and proposed text of the regulations are available here.