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California Promotes AI in Employment Hiring

Legislatures across the country are racing to keep up with the ever-expanding uses of artificial intelligence (AI) in the workplace. While to date much of the focus has been on ethical uses of AI, disclosures requirements, and informed consent (e.g., the Illinois 2019 Artificial Intelligence Video Interview Act), the California legislature recently took the bold move of promoting AI as a tool to reduce bias and discrimination in hiring and employment. As part of this effort, the California assembly introduced California Assembly Concurrent Resolution 125, titled “Bias and discrimination in hiring reduction through new technology” (CACR 125).

Current California (and federal) laws permit employers to utilize tests and other selection procedures for purposes of hiring or promotion (provided they are otherwise lawful). CACR 125 endorses adding AI and algorithm-based technologies to these recruitment tools.

In passing CACR 125, the California legislature observed that there continue to be disparate rates of callbacks of diverse applicants as compared to non-diverse applicants with identical resumes. The California legislature cited a 2014 report finding that resumes were the worst predictor of job success of any of the employment selection tools studied. Various AI applications would allow employers to remove the traditional indicators of race, gender and even class from resumes, and/or to rely on tools other than resumes.

Ironically, while the use of AI may provide a new frontier in bias-free recruitment and retention practices, employers embracing these evolving strategies may still need to be vigilant in guarding against the age-old risks inherent in any testing or data-collection tool–the risk of disparate impact or failure to protect privacy.

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About this Author

Danielle Ochs, Ogletree Deakins, Employer Defense Lawyer, arbitration proceedings Attorney

Ms. Ochs works in the San Francisco office of Ogletree Deakins, where she is a Shareholder. She has nearly 20 years of experience as a civil litigator, with an emphasis on the defense of employment-related claims in federal and state trial and appellate courts and administrative agencies. Ms. Ochs’ experience includes successfully defending employers in both jury and bench trials and in arbitration proceedings. In addition to her active labor and employment litigation practice, Ms. Ochs has litigated a range of business disputes including, trade secrets, unfair...