On March 15, 2022, the California Fair Employment & Housing Council released draft revisions to the state’s employment non-discrimination laws that would dramatically expand the liability exposure and obligations of employers and third-party vendors that use, sell, or administer employment-screening tools or services that embody artificial intelligence, machine learning, or other data-driven statistical processes to automate decision-making.

As proposed, the regulations would define an “automated-decision system,” or ADS, in extremely broad terms: any “computational process, including one derived from machine learning, statistics, or other data processing or artificial intelligence techniques, that screens, evaluates, categorizes, recommends, or otherwise makes a decision or facilitates human decision making that impacts employees or applicants.” This includes, without limitation:

• algorithms that screen resumes for particular terms or patterns;
• algorithms that employ face and/or voice recognition to analyze facial expressions, word choices, and voices;
• algorithms that employ gamified testing that include questions, puzzles, or other challenges used to make predictive assessments about an employee or applicant, or to measure characteristics including but not limited to dexterity, reaction time, or other physical or mental abilities or characteristics; and
• algorithms that employ online tests meant to measure personality traits, aptitudes, cognitive abilities, and/or...

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