Employer implementation of AI into the workplace has prompted California regulators to propose new rules that will govern the use of AI tools in employment decisions such as recruitment, application screening, hiring, and promotions.
The Civil Rights Department identified its concern that AI may exacerbate existing biases and continue such trends in a situation where AI is asked to mimic an existing workforce that happens to be male-dominated. Such guidance may cause the AI to reject female applicants to find the right “fit.” It has proposed regulations that:
- Clarify that job applicants or employees who are harmed by AI decision-making systems due to protected characteristics will have claims against the employer.
- Require employers and covered entities to maintain employment records, including automated decision-making data used for decision-making, for at least four years.
- Affirm that using an automated decision-making system alone does not replace the requirement for an individualized assessment when considering an applicant’s criminal history.
- Clarify that third parties are prohibited from aiding and abetting employment discrimination, including through the design, sale, or use of an automated decision-making system. In other words, AI providers, along with employers using their technology, may be liable for alleged discrimination arising from the use of AI systems.
- Provide clear examples of tests or challenges used in automated decision-making system assessments that may constitute unlawful medical or psychological inquiries.
California employers that use AI in employment decisions should immediately consult with employment counsel and take measures to insulate themselves from potential litigation.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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