Last month, Illinois Governor J.B. Pritzker signed HB 3773, the Bill expands the Illinois Human Rights Act to regulate the use of artificial intelligence (AI) in hiring, recruitment, promotions and other employment processes. The Bill, signed August 9, 2024, is effective January 1, 2026.
The Illinois Human Rights Act prohibits employers from discriminating based on race, age, sex, religion, and other protected characteristics. The Bill bolsters these protections; if an employer intentionally or unintentionally uses AI in a manner which results in discrimination, the employer has violated the law. Furthermore, employers are required to notify individuals and employees when AI is used in recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or the terms, privileges, or conditions of employment. While applicants are not explicitly mentioned in the Bill, the references to the hiring process imply that these protections will extend to them as well as employees.
The notice requirements are reminiscent of the Illinois Artificial Video Interview Act of 2020. That law requires employers who use AI to analyze applicants interview video submissions, to notify the applicant that AI may be used to evaluate the interview, explain how it is used, and gain the applicants consent for AI to be used.
The amendments made to the Illinois Human Rights Act apply much of the Equal Employment Opportunity Commission’s (EEOC) May 2023 guidance on AI usage in the recruitment and hiring process. The EEOC pointed out that some AI algorithms may adversely impact protected groups and warned that employers may be violating Title VII if AI is found to be discriminatory.
The Illinois Department of Human Right and Illinois Human Rights Commission are responsible for enforcing the AI regulations. Employers must remain cautious as the available remedies to individuals include back pay, lost benefits, reinstatement, attorney’s fees, and other potential compensation.
Colorado was the first state to pass legislation on AI-based discrimination. The Colorado law requires a risk management policy or an AI impact assessment to expressly analyze the impact of AI on employment practices. Illinois does not have this requirement; however, such practices will reduce an employer’s likelihood of violating the law. If you decide to do such an analysis, you may want to employ competent employment counsel to ensure you do not create something that can be used against you to prove you have violated the law.
As the use of AI skyrockets, employers should assess their usage of AI, ensure they remain compliant with the notice requirements and other laws, keep records of AI usage, and avoid being overly reliant on AI as it is not invulnerable to mistakes. It is almost assured that more states will pass similar legislation, so it is important that all employers across the country remain on top of their AI usage.
Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
