The New Jersey Employment Law Firm Blog
Artificial intelligence (AI) has received a large amount of media coverage recently, largely due to applications that use AI to create visual or written works. Businesses have been using AI tools for a variety of purposes for some time, including the hiring process. Since AI is a relatively new technology, New Jersey employment laws have not caught up to many of its latest functions. The Equal Employment Opportunity Commission (EEOC) has taken notice of numerous risks posed by AI, including implicit bias in hiring. Last year, it issued guidance regarding the use of AI as a decision-making tool. It joined with several other federal agencies in April 2023 to issue a joint statement about potential legal liabilities from relying on AI. A bill pending in the New Jersey Legislature would regulate AI tools that could contribute to employment discrimination. A similar law is set to take effect in New York City in July.
Multiple state and federal statutes prohibit discrimination in hiring, firing, and other features of employment based on certain factors. The New Jersey Law Against Discrimination (NJLAD) specifically protects workers against discrimination on the basis of race, religion, sex, sexual orientation, gender identity, disability, age, genetic information, and other protected categories. Federal laws like Title VII of the Civil Rights Act of 1964 and the Americans With Disabilities Act (ADA) of 1990 also deal with workplace discrimination.
Discrimination does not have to be overt or intentional to violate the law. The U.S. Supreme Court has held that employment policies or practices are unlawful if they have a discriminatory impact. Much of the concern over the use of AI in hiring decisions stems from the fact that it might use data from past hiring practices to guide decisions in the present. This can lead to disparate impact discrimination, even if no one intended to discriminate.
In May 2022, the EEOC issued a guidance document addressing the use of AI in the context of ADA compliance. It identified some of the most common ways the use of AI as a screening tool can violate the ADA. These include failing to account for an individual’s ability to do a job with reasonable accommodations and violating the ADA’s prohibitions on inquiries related to disabilities and medical conditions.
The joint letter issued by the EEOC and three other federal agencies, including the Civil Rights Division of the Department of Justice, addresses how each agency’s enforcement authority relates to AI. It identifies three main areas of concern:
– Datasets that are “unrepresentative or imbalanced” or contain “historical bias”;
– Lack of transparency in how AI algorithms make decisions; and
– Use of AI systems beyond the scope of what the developers intended or envisioned.
A bill pending in the New Jersey Assembly, A4909, would require “automated employment decision tools” (AEDTs) to undergo annual “bias audits” to determine whether it risks violations of the NJLAD. The bill is currently waiting in committee. New York City passed a similar bill in December 2021. It will begin enforcing the provisions affecting AEDTs on July 5 of this year.
If you believe that your employer has engaged in unlawful acts that have harmed you, an experienced employment lawyer can help you stand up for your rights. The Resnick Law Group represents workers in New Jersey and New York in claims for discrimination and other violations of state and federal law. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation with a member of our team.