Calif. Civil Rights Council Clears Employer Automated Decision Rules
The California Civil Rights Council agreed Friday to clear proposed employment rule changes that update the state’s anti-discrimination regulations for automated decision-making technology (ADMT). Friday’s action sent the final proposed text to the Office of Administrative Law for approval.
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“It is unlawful for an employer or other covered entity to use an automated-decision system or selection criteria (including a qualification standard, employment test, or proxy) that discriminates against an applicant or employee or a class of applicants or employees” on a basis protected by California law, including sex, national origin, pregnancy status, religion, according to the proposed rules. “Relevant to any such claim or available defense is evidence, or the lack of evidence, of anti-bias testing or similar proactive efforts to avoid unlawful discrimination, including the quality, efficacy, recency, and scope of such effort, the results of such testing or other effort, and the response to the results.”
The rules define an automated-decision system as a “computational process that makes a decision or facilitates human decision making regarding an employment benefit.” It “may be derived from and/or use artificial intelligence, machine-learning, algorithms, statistics, and/or other data processing techniques.” The term “excludes word processing software, spreadsheet software, map navigation systems, web hosting, domain registration, networking, caching, website-loading, data storage, firewalls, anti-virus, anti-malware, spam- and robocall-filtering, spellchecking, calculators, database, or similar technologies, provided that these technologies do not make a decision regarding an employment benefit.”
“The use of an automated-decision system that, for example, measures an applicant’s skill, dexterity, reaction time, and/or other abilities or characteristics may discriminate against individuals with certain disabilities” protected by law,” say the updated rules. In the context of interviews, an “automated-decision system that, for example, analyzes an applicant's tone of voice, facial expressions or other physical characteristics or behavior may discriminate against individuals based on race, national origin, gender, disability, or other [protected] characteristics,” the rules say.
“To avoid unlawful discrimination, an employer or other covered entity may need to provide reasonable accommodation to an applicant as required by Article 8 (religious creed) or Article 9 (disability) of these regulations.”
The California Privacy Protection Agency has a separate rulemaking open on ADMT (see 2502200025).