California’s Fair Employment and Housing Council (FEHC) recently drafted a bill to ensure artificial intelligence (AI) and other related technologies used by employers in recruiting, hiring, and other employment decisions comply with anti-discrimination laws. In a working draft released to the public, the bill states that “the use of and reliance upon automated-decision systems that limit or screen out…applicants based on protected characteristic(s) set forth in this Act may constitute unlawful disparate treatment or disparate impact.” California’s concern about the increased role of AI and other related technologies have on employment decisions, combined with their general lack of regulation, has been shared by the U.S. Equal Employment Opportunity Commission (EEOC). In October 2021, the EEOC launched an initiative on artificial intelligence and algorithmic fairness, stating that it “is keenly aware that these tools may mask and perpetuate bias or create new discriminatory barriers to jobs. We must work to ensure that these new technologies do not become a high-tech pathway to discrimination.”

If passed, the bill could expose employers to new liability for using these types of technologies in employer-related decision-making if non-compliant with anti-discrimination laws. The draft bill is currently in its pre-rule-making phased and the FEHC is accepting public comment on the matter at [email protected]