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Employment Regulations Regarding Automated-Decision Systems (ADS)

Summary

California is implementing regulations that clarify how its existing Fair Employment and Housing Act (FEHA) applies to the use of ADS. These regulations prohibit discriminatory outcomes (both intentional and not) resulting from ADS in hiring, promotions, recruitment, or other employment decisions. Employers will have to retain detailed records for four years, conduct or at least document efforts to avoid bias, and provide reasonable accommodations where ADS may disadvantage people with protected characteristics.

Key Takeaways

  • The regulations define Automated‐Decision System (ADS) broadly as computational processes that make or facilitate human decision‐making regarding employment benefits; includes AI, machine learning, algorithms, etc.
  • Use of ADS that results in discrimination is unlawful — whether by design or via disparate impact. Employers must show that selection criteria are “job‐related and consistent with business necessity” and offer accommodations when necessary.
  • Employers are liable not just for their own deployment of ADS, but also for ADS used by their agents, vendors, or third parties when acting on behalf of the employer.
  • Recordkeeping requirements are extended: employers (and covered entities) must preserve applications, personnel records, ADS data (including inputs and outputs, development/customization data) for 4 years from date of creation or related personnel action.
  • Anti‐bias testing is not strictly mandated in all cases, but the presence or absence, quality, recency, scope, results, and responses to such testing will be relevant in any legal defense or claim.

Additional Sources

Tags

ads, discrimination, employmnt, privacy, bias