California’s Proposed Regulation on Automated Decision-Making Is in the Works

The California Civil Rights Council has been working on proposed regulation revisions to include automated decision-making in the requirements under the Fair Employment and Housing Act (FEHA).

The council met on Oct. 17 for public comment on the most recent version of the regulations and voted to extend the comment period to 30 days, though the period is typically only 15 days.

Here are some of the highlights of the proposed regulations.

Definitions

1. An automated decision system (ADS) is defined as a “computational process that screens, evaluates, categorizes, recommends, or otherwise makes a decision or facilitates human decision-making that impacts applicants or employees.” The definition excludes word processing software, spreadsheet software, and map navigation systems.

2. Adverse impact (or disparate impact) includes the use of a facially neutral practice that may create a substantial disparity in the rate of selection in hiring, promotion, or other employment decisions that work to the disadvantage of a group of individuals on a basis protected by FEHA.

3. A proxy is a technically neutral characteristic or category correlated with a basis protected by FEHA.

4. The regulations define examinations or inquiries that are administered in whole or part using an ADS as being medical or psychological examinations.

Revisions to Existing Regulations

Under the proposed regulations, it is unlawful for an employer to use an ADS or selection criteria that harm an applicant or employee on a basis protected under FEHA.

The regulations propose that an ADS that measures an applicant’s skill, dexterity, reaction time, and/or other abilities or characteristics may require employers to provide accommodations as they would in other situations. The same would be the case for an ADS used to measure reactions or similar during interviews.

The regulations add ADS to the list of methods for searching for criminal background history that are prohibited before a conditional offer of employment has been extended.

Record Keeping

Subject to the current requirements under FEHA regulations for preserving personal and other employment records received by an employer, employers must retain the following:

1. All applications.

2. Staff records.

3. Membership records.

4. Employment referral records.

5. Selection criteria.

6. ADS data.

7. Other records related to a policy practice or decision affecting an applicant or employee.

For those interested in submitting comments about the proposed regulations, comments can be submitted until Nov. 18, and addressed to:

Civil Rights Department

c/o Rachael Langston, Assistant Chief Counsel

555 12th St.—Suite 2050

Oakland, CA 94607

Comments can also be submitted via email to: council@calcivilrights.ca.gov. The council has indicated a preference for submissions via email.

Sayaka Karitani is an attorney with Jackson Lewis in Los Angeles. Robert Yang is an attorney with Jackson Lewis in San Francisco. © 2024 Jackson Lewis. All rights reserved. Reposted with permission.